JUDGMENT (ORAL) Agarwal, J - An order of conviction for an offence of murder punishable under Section 302 of the Indian Penal Code and a sentence of rigorous imprisonment for life is impugned in the present appeal. 2. The incident in question occurred in the early hours of 23rd December, 1990 at about 5 .30 a.m. The place of incident is within the premises of Victoria Automobile Petrol Pump, which is located within the limits of village, Kalam boli, on the western side of the Bombay-Pune High Way, Tal. Panvel, Dist. Raigad. The accused, viz. Baby Mathew D'Souza and the deceased A.N. Narayan, both used to be engaged as what is colloquially described as "sending drivers". 'Whenever the trucks used to arrive from outside the State of Maharashtra, say from the State of Karnataka, or Tamil Nadu, the local drivers of the truck used to engage local drivers for the purpose of driving the trucks from Kalamboli to Bombay proper. This was done as the drivers of other States were not familiar with the local language. They were also not familiar with the local traffic and the place of the destination of the trucks. Such drivers were engaged on payment basis. The accused and the deceased Narayan were such drivers who used to find themselves at the aforestated Victoria Automobile Petrol Pump where long distance trucks used to stop for night halts and for the purpose of engaging sending drivers for driving trucks to their destination in Bombay. 3. A day prior to the incident in question i.e. 22nd December, 1990, a hot discussion had ensued between the accused and the deceased Narayan, regarding the charges which the deceased was charging for driving the truck to Bombay. The accused was scolding the deceased for charging unreasonable low charges for offering his services for driving the truck to Bombay. 4. P.W. 4, Mukund Nair was at the relevant time the Manager of the Petrol Pump. After finishing his duty at about 2.00 a.m. on 23rd December, 1990 he closed the cabin of the petrol pump and went to sleep. At about 5.30 or 5.45 a.m. someone knocked the cabin and the witness came out. Several drivers and other persons had gathered. The witness saw the accused with a stone on his hand. On seeing the witness accused ran away with the stone. At about 5.30 or 5.45 a.m. someone knocked the cabin and the witness came out. Several drivers and other persons had gathered. The witness saw the accused with a stone on his hand. On seeing the witness accused ran away with the stone. At that time the witness saw the deceased lying on the ground. When the witness came out he had seen the accused standing with a stone near the deceased. P.W. 5 Dhanraj Mani, who was also a sending driver, was found present. The witness, Mukund Nair, asked Dhanraj as to what happened. Dhanraj told the witness that the accused had caused injuries to the deceased with a stone on his head. The witness, thereafter, went to the Kalamboli Police Station and informed of the incident to P.W. 9, Mahadeo Kashinath Thombare, an A.S.I. attached to the Kalamboli Police Station. He informed the A.S.I. that the deceased Narayan was lying in an injured condition. The A.S.I. Thombare, therefore deputed a Police Constable alongwith the witness for removing the injured, A.N. Narayan to the hospital. The injured, Narayan, was thereafter removed to a dispensary at Panvel in an Auto-rickshaw. Since the condition of the injured Narayan was serious an ambulance was called for. However, before the injured Narayan could be removed from the dispensary he breathed his last. The witness thereafter went back to the Police Station and lodged his complaint, Exhibit-15. 4. P.W. 6, Laxman Goma Patil is a vendor dealing in the business of sale of Vada Pav in a stall located in close proximity. Like the earlier two witnesses, he too was sleeping in his house which is adjacent to his shop. In the early hours of the day of the incident, he had gone to attend nature's call. When he returned after answering the nature's call he saw a crowd near the petrol pump. He went near and saw that the accused was cautiously making good his escape with a stone in his hand. He saw the injured Narayan lying on the ground with injuries on his head. The Manager of the Petrol Pump, viz. P.W. 4, Mukund Nair went to the Police Station for lodging a complaint. He returned with a constable from the Police Station. The injured was thereafter removed in an Auto-rickshaw to the dispensary. He later found that Narayan had expired. The Manager of the Petrol Pump, viz. P.W. 4, Mukund Nair went to the Police Station for lodging a complaint. He returned with a constable from the Police Station. The injured was thereafter removed in an Auto-rickshaw to the dispensary. He later found that Narayan had expired. The aforesaid witnesses are examined by the prosecution on the main incident of assault leading to the death of Narayan. 5. P.W. 2, Kamalakar Sitaram Sakhare, is a panch witness, who has attested the Inquest Panchanama, which is at Exhibit-9. After the inquest P.W. 11, Dr. Ramrao Tukaram Kendre performed the postmortem on the corpse of the deceased, Narayan. The post-mortem notes are at Exhibit-30. P.W. 8, Ramchandra Damodaran Pilary Nair, is the punch witness for the seizure of the blood stained clothes on the person of the deceased. The panchanama is at Exhibit-21. P. W. 3, Balram Bhagat is a punch in respect of the panchanama regarding the scene of offence, as also the seizure of incriminating articles from the sita. The panchanama is at Exhibit-B. The accused was arrested on 24th December, 1990 and thereafter his blood stained shirt and fungi were attached. P.W. 7, Narayan Namdeo Patil is the punch in respect of the seizure of blood stained clothes of and the panchanama in respect of the same is at Exhibit-19. P.W. 12, Abdul Jalil Mohamad Keke is the punch who has scribed the panchanama in respect of the statement, Exhibit-32, leading to the discovery of a stone at the instance of the accused. Panchanama regarding the discovery is at Exhibit-33. P.W. 10, Parshuram Balkrishna Kakad, is a P.S.I. attached to the Kalamboli Police Station. He is the investigating officer in the case. In addition to the above evidence, the prosecution examined P.W. 1, Pandharinath Vithal Zende, a Circle Inspector who with the help of the panchanama in respect of the scene of offence drew a sketch, which is at Exhibit-? The reports of the Chemical Analyser, in respect of the examination of the incriminating articles referred to for analysis, are at Exhibits 26 and 26-A. This is the entire evidence which has been led by the prosecution. 6. The accused pleaded not guilty. His defence was one of total denial. According to him, a false case has been made against him at the instance of the Police. 7. 6. The accused pleaded not guilty. His defence was one of total denial. According to him, a false case has been made against him at the instance of the Police. 7. On an appraisal of the evidence on record, the learned IInd Addl. Sessions Judge, Raigad, by his judgment and order dated 25th October, 1992, in Sessions Case No. 122 of 1991, passed the aforesaid impugned order of conviction and sentence. The said order of conviction and sentence is impugned in the present appeal. 8. We have with the assistance of. Shri Salvi, the learned Advocate appearing in support of the appeal as also Shri Nalwade, the learned Public Prosecutor, gone through the entire evidence on record. We have heard both the Counsel in support of their respective contentions. After taking us through the evidence on record, Shri Salvi, appearing on behalf of the appellant accused pointed out that P.W. 4 Mukund Nair in his first disclosure to P.W. 9, A.S.I. Thombare, has failed to implicate the accused in the instant crime. He has pointed out that A.S.I. Thombare in his evidence has unequivocally stated that on the day in question at about 6.00 a.m. P.W. 4, Mukund Nair had come to the Police Station and informed him that one injured person was lying in his compound of the petrol pump and therefore he sent police constables, Patil and Warange alongwith Mukund Nair for removing the injured to the hospital. Shri Salvi further pointed Gut that it was only after the injured Narayan had succumbed to the injuries that P.W. 4, Mukund Nair lodged his complaint and this was at about 8.15 a.m. It was only at this belated stage that Mukund Nair implicated the accused. None disclosure of the incident involving the accused at the first possible opportunity, according to Shri Salvi, renders the entire case of the prosecution highly doubtful. Proceeding further Shri Salvi has contended that if Mukund Nair had not implicated the accused at the first possible opportunity, he had not known who the assailant was. None disclosure of the incident involving the accused at the first possible opportunity, according to Shri Salvi, renders the entire case of the prosecution highly doubtful. Proceeding further Shri Salvi has contended that if Mukund Nair had not implicated the accused at the first possible opportunity, he had not known who the assailant was. If Mukund Nair did not know, even the claim of P.W. 5, Dhanraj Mani, of his having witnessed the assault on the deceased at the hands of the accused becomes highly doubtful as according to both the witnesses Mukund Nair had enquired with Dhanraj Mani regarding the incident and Dhanraj Mani had informed Mukund Nair that the accused had assaulted the deceased with a stone. On the same reasoning Shri Salvi submitted that the claim of P.W. 6, Laxman Patil of having come on the scene of offence immediately after the assault on his further claim that he saw the accused leaving making good his escape with a stol1e, in his hand is also doubtful. If that claim was true it is not possible that the name of the accused, as being the assailant, had not been disclosed and if it had been disclosed the same would not have been omitted to be disclosed by Mukund Nair to A.S.I. Thombare. The above argument, no doubt, on the face of it, appear attractive. However, on a close scrutiny the same is found to be devoid of merit. Our reasons, for this finding, are as follows: 9. In the first instance, it is to be noted that the presence of all the three witnesses at the time of the incident, is absolutely natural. P.W. 4 Mukund Nair is the Manager of the Petrol pump and his presence in the cabin of the petrol pump in the early hours at the material time is natural, particularly because the petrol pump is located at the Bombay-Pune Highway which has vehicular traffic almost round the clock. Similarly, P.W. 5 Dhanraj Mani's presence is also natural as he, like the accused and the deceased, was a sending driver. His presence, therefore, at the time of the incident is also natural. Similar is the case of P.W. 6, Laxman Patil, who runs a Vada Pav stall within the vicinity of the petrol pump. Similarly, P.W. 5 Dhanraj Mani's presence is also natural as he, like the accused and the deceased, was a sending driver. His presence, therefore, at the time of the incident is also natural. Similar is the case of P.W. 6, Laxman Patil, who runs a Vada Pav stall within the vicinity of the petrol pump. He has a house adjoining to his shop and, therefore, he finding himself near about the scene of offence after answering the call of nature is also natural. Now as far as the omission on the part of P.W. 4, Mukund Nair, to implicate the accused when he narrated the incident to ASI Thombare, it is to be noted that at that time only an incident of assault had taken place and Narayan was lying in an injured condition. Hence it appears that the gravity of the offence was not known. The uppermost thought which must have prevailed in the mind of Mukund Nair was to render medical laid to the injured Narayan. The omission of specific any naming the accused as assailant of Narayan does not necessarily lead to an inference that he did not know who the assailant was. It is to be noted that as far as P.W. 4, Mukund Nair and P.W. 6, Laxman Patil are concerned, they do not claim to be eye - witnesses to the incident of assault. They claim to have come on the scene immediately after the assault. If these witnessed wanted to -falsely implicate the accused they would have certainly claimed to have witnessed the assault itself. This they have not done. This, therefore, lends considerable amount of credence to their testimony. 10. Moreover, we have certain pieces of evidence, which led corroboration to the testimony of the above witnesses. The accused in the instant case was arrested on 24th December, 1990. After he was arrested his blood stained clothes were attached from his person. Panchanama in this regard is at Exhibit-19 and the same is proved through the evidence of P.W. 7, Narayan Namdeo Patil. The said clothes were sent to the Chemical Analyser and the Chemical Analyser's report, which is at Exhibit-26, shows that the said clothes are stained with human blood of 'O' group, which apparently is the blood group of the deceased. The said clothes were sent to the Chemical Analyser and the Chemical Analyser's report, which is at Exhibit-26, shows that the said clothes are stained with human blood of 'O' group, which apparently is the blood group of the deceased. This can be seen from the C.A. report in respect of the clothes of the deceased which were seized under panchanama Exhibit-21 in the presence of P.W. 8, Ramchandra Damodaran Nair. 11. In addition to the above corroborative evidence, we have further corroboration in the form of discovery made by the accused in respect of the stone which was used for the commission of the instant crime. The statement of the accused is at Exhibit-32 and the panchanama regarding the discovery is at Exhibit-33. The said stone was also sent to the Chemical Analyser. The said stone was discovered from a pit some distance away from the petrol pump. The said stone was also found to be stained with human blood of 'O' group. As far as the discovery of the stone at the instance of the accused is concerned, the learned Judge of the Trial Court has declined to place reliance, as according to him, one more blood stained stone was found at the scene of offence. We have examined the evidence of P.W. 3, Balram Bamji Bhagat as also the panchanama (Exhibit-B) regarding the scene of offence. Neither of them indicate that a blood stained stone was either found or seized from the scene of offence. In fact, the panchanama does not even make a reference to the finding of any stone. The panch witness, he merely states that a stone was also Iying there. This evidence is neither here nor there. Hence the finding of the learned Judge that no reliance can be place on the finding of the blood stained stone at the instance of the accused cannot stand scrutiny. Disagreeing with this finding we hold that the aforesaid evidence regarding the finding of the blood stained stone at the instance of the accused is satisfactorily proved. Since the said stone is found to be stained with human blood of same group as that of the deceased, the same lends substantial corroboration to the evidence of the aforestated three witnesses. In the circumstances, we have no hesitation in holding that the prosecution has proved beyond reasonable doubt the complicity of the accused in the instant crime. Since the said stone is found to be stained with human blood of same group as that of the deceased, the same lends substantial corroboration to the evidence of the aforestated three witnesses. In the circumstances, we have no hesitation in holding that the prosecution has proved beyond reasonable doubt the complicity of the accused in the instant crime. 12. The next and the only question that survives for consideration is what offence has been made good by the prosecution against the accused. In this behalf we have the evidence of P.W. 11, Dr. Ramrao Tukaram Kendre, who has performed the postmortem on the corpse of deceased Narayan. Dr. Kendre has found the following external injuries on the person of the deceased, Narayan. (1). C.L.W. over right eyebrow 2" x ½" x bone deep. (2). C.L.W. right peri to lateral aspect 1 ½" x ½" x bone deep. (3). C.L.W. Left Peri to post aspect 2" x ½" x bone deep. (4). C.L.W. from of right ear ½" x ¼" X ¼". (5). Fracture right Humerus at medial third. All the injuries within 24 hours". In addition, the doctor has found the following internal injuries: 1) Haemotoma over skull 5½”x 2" from right frunto perito Temporal area. 2) Fracture skull from right frontal from eye brow to obliquely going towards perital to left side perito lateral area about 5" long with ¼cm. diameter with Haematoma. 3) Brain matter intact, membrances also intact with dark blue colored with opening of membrances, total brain matter is covered with black red colored haemotoma with cerebral haemorrhage. " After describing the aforesaid injuries, the doctor has gone to state that in his opinion the cause of death was due to cerebral haemorrhage with blunt trauma over the skull. The doctor has not given any opinion as to whether the injuries found by him were either sufficient in the ordinary course of nature to cause death or were likely to cause death. In the instant case we have the description of the stone which was used as an instrument, of attack. It is described at item No. 6, of Exhibit - 4, List of the Muddemal property which reads as follows: "One stone of the size which can be contained in the hand having length of eight inches and width of about 3½ inches and thickness about three inches. It is described at item No. 6, of Exhibit - 4, List of the Muddemal property which reads as follows: "One stone of the size which can be contained in the hand having length of eight inches and width of about 3½ inches and thickness about three inches. Weigh t is about 2½ to three kilo, having blood - stains at several places. Stone blackish." The aforesaid stone by itself cannot be termed as a deadly weapon. We then find that the incident in question occurred on account of some minor quarrels. The quarrel was in regard to the deceased accepting the job of driving the trucks on unduly moderate rates. The accused alleged that not only had the deceased taken a trip which legitimately belonged to the accused but he had done so at unduly moderate charges. In the circumstances having regard to all the facts and circumstances of the case, we find that the prosecution has failed to bring home the offence within the four comers of offence of murder as defined under section 300 of the Indian Penal Code. In our view, the offence committed by the accused would be an offence of culpable homicide not amounting to murder which is punishable under section 304 Part 1 of the I.P.C. 13. In the circumstances, the order of conviction and sentence imposed upon the accused for an offence punishable under section 302 of the I.P.C. is quashed and set aside and the accused is acquitted of the said offence. In its place we hold that the accused is guilty of an offence of culpable homicide not amounting to murder which is punishable under section 304 Part I of the I.P.C. 14. At this stage we have heard the learned Counsel on the question of sentence. Having regard to all the facts and circumstances of the case, in our judgment, a sentence of rigorous imprisonment for 5 years will meet the ends of justice. 15. In the result, the appeal is partly allowed. The order of conviction and sentence dated 25th March, 1992 passed by the learned Addl. Sessions Judge, Raigad, in Sessions Case No. 122 of 1991 under section 302 of the I.P .C. sentencing the accused to suffer rigorous imprisonment for life is set aside. 15. In the result, the appeal is partly allowed. The order of conviction and sentence dated 25th March, 1992 passed by the learned Addl. Sessions Judge, Raigad, in Sessions Case No. 122 of 1991 under section 302 of the I.P .C. sentencing the accused to suffer rigorous imprisonment for life is set aside. The accused is now convicted for an offence of culpable homicide not amounting to murder and punishable under Section 304 Part I of the I.P.C. For the said offence the accused is sentenced to suffer rigorous imprisonment for five years. The accused will be entitled to the set off of the period which he has already undergone. Appeal partly allowed.