JUDGMENT (ORAL) Vishnu Sahai, J. - The appellant aggrieved by the judgment and order dated 2nd January 1993 passed by the 2nd Additional Sessions Judge, Kolhapur in Sessions Case No. 145 of 1987, convicting and sentencing him to undergo imprisonment for life and to pay a fine of Rs. 1000/- and in default to further undergo 6 months R.I. under section 302 of the Indian Penal Code, has come up in appeal before us. 2. The prosecution case in brief is that the deceased Shivputra Kamble was the son of the informant Shankarawwa (P.W.1). According to the prosecution on 26-2-1987 at about 7 a.m. he had gone for work but did not return on that day. The next day i.e. on 27-2-1987, Laxman Bhima Masane (P.W.3) came and informed the informant Shankarawwa (P.W.1) that her son Shivputra was sleeping in a field known as "Guddi". On that information the informant and her daughter in law Shevanta Shivputra Kamble (P.W.2) (the wife of the deceased) went to the aforesaid field and there they found that Shivputra was lying in a semi-conscious condition. Understandably the informant shouted and consequently villagers came there. Thereafter Shivputra was taken to the hospital at Halkarni, but on the way he succumbed to his injuries. The informant then kept the corpse of her son at the door of her house and went to the Police Station, Gadhinglay where she lodged her F.I.R. The F.I.R. is Exhibit 15. During the course of investigation it transpired that the deceased Shivputra had gone to the liquor shop of one Ramu Bhogalkar (P.W.10) where the appellant had also come to take liquor and there an altercation between the two developed, resulting in the appellant assaulting the deceased: 3. The investigation in this case was conducted by A.S.I. Abdul Sattar Nabi Shahapure (P. W.8). It was he who had reduced the F.I.R. of the complainant in writing. On the basis of the F.I.R. an offence under section 302 I.P.C. was registered. He went to the place of the incident and prepared the spot panchanama (Exhibit 11). Thereafter he sent the dead body for post-mortem examination. Latter part of the investigation was conducted by P.S.I. Madhukar Mote (P.W.13). On the evening of 27-2-1987 he had taken over the investigation from A.S.I. Shahapure (P.W. 8). After recording the statements of witnesses he searched for the appellant and finally on 3-3-1987 arrested the appellant. Thereafter he sent the dead body for post-mortem examination. Latter part of the investigation was conducted by P.S.I. Madhukar Mote (P.W.13). On the evening of 27-2-1987 he had taken over the investigation from A.S.I. Shahapure (P.W. 8). After recording the statements of witnesses he searched for the appellant and finally on 3-3-1987 arrested the appellant. He recovered the blood stained half-pant and the shirt which the appellant was wearing on his person. While the appellant was in custody he disclosed his desire that he could have the weapon of assault (a sickle) recovered. Accordingly, the memorandum of panchanama (Exhibit 19) was drawn by PSI Mote (P.W.13). Thereafter in a jeep along with the panchas and the appellant P.S.I. Mote went to the house of the appellant. From his house from a bag which was concealed in the heap of earth near the gobar gas, a blood stained sickle was recovered. The blood stained sickle along with the clothes of the appellant and deceased were sent by P.S.I. Mote to the Chemical Analyst. The reports of the Chemical Analyst are Exhibits 43 and 44. On 22-5-1987 P.S.I. Mote submitted the charge-sheet under section 302 I.P.C. against the appellant. 4. Going backwards, the autopsy of the dead body was conducted on 28-2-1987 between 7.30 a.m. and 8.30 a.m. by Dr. Dattatraya Pavale (P.W.6). On the dead body, the doctor found three incised wounds, one contusion and one minor abrasion. Amongst the three incised wounds one each was situate on the head, neck and clavicle region. In the opinion of the doctor the incised wounds were caused by a sharp and cutting object, like a sickle, which was shown to him in the court. Regarding the other two injuries the doctor opined that they could be caused by a fall. In the opinion of Dr. Pavale the deceased died on account of haemorrhagic shock due to para vertebral vessels and other structures on left side of 5th cervical vertbra. 5. In the due course the case was committed to the Court of Sessions where a charge under section 302 IPC was framed against the appellant to which he pleaded not guilty and claimed to be tried. In the trial Court apart from tendering voluminous documentary evidence prosecution examined as many as 13 witnesses. Out of them three, namely; Ningappa Kamble, Ramu Bhogalkar and Bhima Appa Masane (P.Ws. In the trial Court apart from tendering voluminous documentary evidence prosecution examined as many as 13 witnesses. Out of them three, namely; Ningappa Kamble, Ramu Bhogalkar and Bhima Appa Masane (P.Ws. 9, 10and 11 respectively) were examined as witnesses of fact. The remaining witnesses included the informant Shankarawwa Kamble (P.W.1), who lodged the F.I.R., Shevanta Kamble (P.W.2), the wife of the deceased, Laxman Bhima Masane (P.W.3), who informed P.Ws. 1 and 2 that the deceased was sleeping in the field, Vijay Rajaram Daddikar (P.W.4), panch of recovery of blood stained sickle, Dundappa Yelappa Kamble (P.W.5), panch of spot panchanama, Dattatraya Antu Pawale (P.W.6), who performed the autopsy, Satish Chandrasen Sardesai (P.W.7); panch of recovery of blood stained clothes which the appellant was putting on Abdul Sattar Nabi Shahapure (P.W.8), who conducted the initial part of the investigation, PSI Madhukar Pandarinath Mote (P.W.13) who conducted the later part of investigation and Krishna Govind Shinde (P.W.12), the constable who took the muddamal property from police station Gadhinglaj to the Chemical Analyst, at Pune. In defence no evidence was adduced by the appellant. The learned trial Judge believed the evidence led by the prosecution and passed the impugned order. Hence this appeal. 6. We have heard Mr. P.D. Dalvi holding for Mr. A.Y. Sakhare. We express our appreciation in the thorough manner in which Mr. Dalvi has argued the present appeal. We also appreciate the thorough and fair manner in which Mr. B.G. Vaidya, Additional Public Prosecutor has placed the matter before us. 7. Mr. P.D. Dalvi, learned counsel for the appellant, vehemently contended that neither the evidence of the eye-witnesses nor that pertaining to recovery of sickle and blood stained clothes belonging to the appellant, inspires confidence and consequently the appellant should be acquitted. In the alternative he contended that only an offence under section 304, Part I, I.P.C. and not one under section 302 I.P.C. is made out. 8. We now propose taking-up the contentions canvassed by Mr. Dalvi. So far as the first contention is concerned we regret find that there is no substance in it. With the assistance of learned counsel for the parties we have gone through the evidence of the three eye-witnesses of the incident, Ningappa Kamble, Ramu Bhogalkar and Bhima Masane (P.Ws. 9, 10 and 11). Dalvi. So far as the first contention is concerned we regret find that there is no substance in it. With the assistance of learned counsel for the parties we have gone through the evidence of the three eye-witnesses of the incident, Ningappa Kamble, Ramu Bhogalkar and Bhima Masane (P.Ws. 9, 10 and 11). In our opinion the evidence of Ramu Bhogalkar and Bhima Masane inspires implicit confidence and does not suffer from any infirmity which militates against the core of the prosecution case. Both these witnesses have given a perfectly natural and probable account of the incident. P.W.10 Ramu Bhogalkar has stated that he does the business of illegally selling liquor in Guddi field. His evidence is that on the evening of 27-2-1987 he was selling liquor assisted by P.W.11 Bhima Appa Masane. At that time (between 7 p.m. to 9 p.m.) the appellant and the deceased came there and on payment had a drink. He also states that after they had consumed liquor the deceased Shivputra asked the appellant to pay the rent of the land he was cultivating and the appellant is alleged to have replied that the deceased should not speak about this matter in presence of others. He deposed that deceased Shivputra insisted that he would ask for the rent. According to him the appellant took out a sickle from the bag which he was carrying with it, inflicted two blows on the deceased. According to this witness, a torch and lantern was available on the spot. The statement of this witness is corroborated in material particulars by Bhima Masane (P.W.11). We may mention that both these witnesses were wholly independent witnesses and had no axe to grind, against the appellant. Apart from minor contradictions, the learned counsel for the appellant could not point out to us any such inherent defect or improbability in their testimony which would render it unworthy of belief. We have no hesitation in reaching the conclusion that both Ramu Bhogalkar P.W.10 and Bhima Masane P.W.11 were wholly reliable and truthful witnesses of the incident. 9. We may also mention that although P. W. 9 Ningappa Kamble has turned hostile, but, after going through his statement, we find that on material particularls, he has corroborated the evidence of the above mentioned two eye witnesses. For instance, he admits the presence of the appellant at the place of the incident. 9. We may also mention that although P. W. 9 Ningappa Kamble has turned hostile, but, after going through his statement, we find that on material particularls, he has corroborated the evidence of the above mentioned two eye witnesses. For instance, he admits the presence of the appellant at the place of the incident. He also admits that the appellant was having a bag in his hand. He further admits that Ramu Bhogalkar (P.W.10) and Bhima Masane (P.W.11) were selling liquor at that time. He also admits that there was a lantern in the liquor shop. In our opinion, his evidence lends corroboration to the evidence of the above two witnesses. 10. We may also mention that since liquor was being sold at the place of the incident, it was natural for some light to be burning there. Consequently, we think it probable that a lantern and a torch were at the place of the incident. On account of that light, we have no hesitation in holding that the three eye-witnesses would have identified the appellant, who after all belonged to their village Nandanwat, and was known to them from before the incident. 11. In addition to the evidence of three eye witnesses, there is also evidence of recovery of blood-stained clothes (shirt and half-pant) which the appellant was putting on when arrested and also that of recovery of a blood stained sickle on pointing out of the appellant. The aforesaid recoveries were made on 3-3-1987 i.e. within a week of the incident. We find the evidence of the panchas and PSI Mote, with respect to the aforesaid recoveries highly convincing and authentic. The report of the Chemical Analyst, indicates that on the shirt, half-pant, and blood-stained sickle, there was blood of B group, the blood group of the deceased. The evidence of recovery and that of the Chemical Analyst, also corroborates and strengthens the ocular account, referred to above. 12. In view of the aforesaid discussion, in our opinion, the learned trial Judge acted correctly in recording the involvement of the appellant in the instant case. 13. The only question which remains to be answered is as to whether the learned trial Judge acted correctly in convicting the appellant under Section 302 IPC. In our opinion, the answer to this question has to be in the negative. 13. The only question which remains to be answered is as to whether the learned trial Judge acted correctly in convicting the appellant under Section 302 IPC. In our opinion, the answer to this question has to be in the negative. In the instant case, there was no background of malice or enmity between the appellant and the deceased. According to the prosecution, it was on the spur of the moment that a quarrel took place between the deceased and the appellant when the former asked the latter to pay the rent for the land he was cultivating and the latter was telling the former that he should talk about it later on. The deceased however persisted with the demand for the rent. It was in these circumstances that the appellant took out a sickle from his bag and with the same gave two blows on the person of Shivputra. In the earlier part of our judgment, we have referred to the ante mortem injuries found on the person of Shivputra. We have carefully gone through the post-mortem report of the deceased Shivputra. We find that none of the injuries sustained by him were grievous in nature. The post-mortem report does not show that Shivputra suffered any internal damage. P. W. 6 Dr. Pawale who conducted the autopsy of the deceased did not depose that the injuries of the deceased were sufficient in the ordinary course of nature to cause the death of the deceased. In view of the aforesaid facts, in our opinion, the case of the prosecution would not fall within the ambit of any of the four clauses of section 300 I.P.C., the breach of which is punishable under section 302 I.P.C. In our considered judgment the act of the appellant would fall within the ambit of the first part of section 304 I.P.C. In the circumstances mentioned above, in our opinion, when the appellant assaulted the deceased with the sickle, it can safely be said that he had the intention to inflict such injuries as were likely to cause the death of the deceased. 14. For the reasons mentioned above we acquit the appellant under section 302 I.P.C. and set aside his conviction and sentence on that count and direct that in case the appellant has paid the fine the same shall be refunded to him. 14. For the reasons mentioned above we acquit the appellant under section 302 I.P.C. and set aside his conviction and sentence on that count and direct that in case the appellant has paid the fine the same shall be refunded to him. Instead, we convict the appellant under section 304 Part I, I.P.C. We have given our anxious consideration to the quantum of sentence to be imposed on the appellant under section 304 Part I I.P.C. Considering the totality of the circumstances, we find it expedient in the interest of justice to award him a sentence of 7 years R.I. under section 304 Part I of the Indian Penal Code. We are informed that the appellant is in jail. He shall remain there till he serves out his sentence. This appeal is thus partly allowed and partly dismissed. Appeal partly allowed. Conviction u/s 302 IPC set aside. Appellant convicted u/s 304, Part I, IPC. Award of sentence of 7 years R.I.