JUDGMENT G.D. Patil. J. - The appeal is directed against the judgment and order passed by the learned Additional Sessions Judge. Amravati in Sessions Case No. 173 of 1990 convicting the accused appellant of the offence punishable under Section 302 of the Indian Penal Code and sentencing him to suffer imprisonment for life and fine of Rs. 1000/-. I/d further R.I., for six months, for having committed murder of one Raju Thombre. 2. Deceased Raju Thombre was resident of Shantinagar. Morshi. where he was living with his mother Vatsalabai. His brother P.W. 4 Dilip alongwith his wife was also living in the same premises which is adjacent to the house of Raju. The appellant is resident of the locality situated near Shantinagar. 3. On 2nd July. 1990 as per prosecution case at about 2 p.m. when P.W. 4 Dilip his wife. P.W. 6 Anil Kamble and P.W. 7 Dinesh Sahare were sitting in the house of Dilip they heard the shouts of abuses and. therefore. P.W. 4 Dilip followed by others came out of the house and saw that the appellant Wasudeo was abusing his mother P.W. 1 Vatsalabai. P.W. 4 Dilip, therefore asked Wasudeo not to abuse his mother. The appellant had a Katyar (dagger) in his hand. He thereupon assaulted P.W. 4 Dilip with the dagger as a result of which Dilip sustained injury on his left hand. Deceased Raju then rushed forward and caught the appellant by arms near waist. The appellant then assaulted Raju by the Katyar on his back. Raju sustained bleeding injury. The appellant Wasudeo ran away from the spot. Immediately a Rickshaw of P.W. 10 Subhash was brought and Raju was sent to the hospital with his mother P.W. 1 Vatsalabai. While they were on the way to the hospital, near electric D.P. which is half kilometer away from the house of the deceased Raju and near which the first assault was made on him. the appellant obstructed the rickshaw and assaulted Raju on his thighs. P.W. 1 Vatsalabai came back from the Rickshaw towards her house and told P.W. 4 Dilip that Wasudeo obstructed the Rickshaw near the DP whereupon P.W. 4 Dilip followed by others. went towards the DP. The appellant ran away from the spot. Raju was then taken to the hospital where he ultimately succumbed to his injuries. P.W. 1 Vatsalabai came back from the Rickshaw towards her house and told P.W. 4 Dilip that Wasudeo obstructed the Rickshaw near the DP whereupon P.W. 4 Dilip followed by others. went towards the DP. The appellant ran away from the spot. Raju was then taken to the hospital where he ultimately succumbed to his injuries. P.W. 4 Dilip went to the Police Station and lodged his oral report Ex. 34 on the basis of which initially offence was registered under Section 307 I.P.C. and on the death of Raju which was converted under Section 302 I.P.C. The appellant was then arrested. Memorandum of admission of the appellant was recorded on 3-7-1990. On 3rd July 1990 the dagger Art. 1 (Katyar)-was seized at the instance of the appellant under a Panchanama Ex. 29. Similarly clothes of the appellant were seized under seizure memo Ex. 30. Inquest report was prepared and other investigation was carried on. Charge-sheet came to be submitted and ultimately the appellant was committed to the Court of Sessions by the Judicial Magistrate, First Class. Morshi. 4. To the charge framed under Section 302 I.P.C. the appellant pleaded not guilty and claimed to be tried. From his version in his statement under Section 313 of the Code of Criminal Procedure his defence is that it was P.W. 4 Dilip who caused the injuries to Raju in an attempt by Dilip to assault Raju. 5. The prosecution has examined in all 14 witnesses including 4 eyewitnesses viz. P.W. 1 Vatsalabai. P.W. 4 Dilip. P.W 6 Anil Kamble and P.W. 7 Dinesh Sahare. Panch witnesses P.W. 3 Ganpat and P.W. 5 Sunil turned hostile. Similarly two other witnesses P.W. 10 Subhash and P.W. 11 Sunanda turned hostile. P.W. 8 Dr. Dindokar conducted autopsy and submitted Post Mortem report which is at Ex. 39. P.W. 4 Dilip and the appellant were also examined by the doctor and their injury reports are at Exhs. 48 and 49. 6. Similarly two other witnesses P.W. 10 Subhash and P.W. 11 Sunanda turned hostile. P.W. 8 Dr. Dindokar conducted autopsy and submitted Post Mortem report which is at Ex. 39. P.W. 4 Dilip and the appellant were also examined by the doctor and their injury reports are at Exhs. 48 and 49. 6. Considering the evidence led by the prosecution and the defence of the appellant the learned Additional Sessions Judge came to the conclusion that Raju died homicidal death caused by haemorrhage due to multiple injuries inflicted by the appellant to the deceased Raju with intention to cause death and therefore the appellant was guilty of committing culpable homicide amounting to murder and resultantly convicted him of the offence punishable under Section 302 of the Indian Penal Code and sentenced him to suffer imprisonment for life and to pay a fine of Rs. 1000/- i/d to suffer further rigorous imprisonment for six months. Hence this appeal 7. Mr. Daga, learned counsel for the appellant did not seriously dispute the homicidal death of Raju and also the involvement of the appellant in the 1ncident particularly having regard to the appellant's admission in his statement under Section 313 Cr. P.C. while answering the questions before the Court. Even otherwise the prosecution version that Raju received stab injuries by a dagger Art. 1 stands corroborated by the medical evidence of P.W. 8 Dr. Dindokar who conducted autopsy and submitted the post-mortem report Ex. 39 indicating the presence of penetrated stab wound on the back penetrated wound over left thigh and another penetrated incised wound on the left thigh. Dr. Dindokar deposed that all the injuries were ante-mortem and in his opinion the cause of death of Raju was shock and syncope as a result of haemorrhage due to multiple. Injuries. There is nothing in his evidence to discard it and there cannot be any doubt that Raju died homicidal death. 8. In so far as the involvement of the appellant in the incident is concerned, as already indicated there are as many as four eye-witnesses whose version stands corroborated by the medical evidence as also by the C.A. report which indicates human blood on Article 1 dagger as also the clothes of the appellant. 8. In so far as the involvement of the appellant in the incident is concerned, as already indicated there are as many as four eye-witnesses whose version stands corroborated by the medical evidence as also by the C.A. report which indicates human blood on Article 1 dagger as also the clothes of the appellant. Though the Panch witnesses turned hostile on the aspect of seizure of the clothes of appellant and that of recovery of the dagger Article 1 at the instance of the appellant besides the contrary suggestions there being nothing else to disbelieve the version of the Investigating Officer P.W. 12 Pralhad Giri in this regard we are not inclined to discard the seizure of the clothes of the appellant under Ex. 30 and the recovery of the dagger under Ex. 28 and Ex. 29. The C.A. report Ex. 25 proves that these articles were stained with blood and blood on the dagger was found to be human blood. In so far as oral evidence is concerned it was tried to be contended by Mr. Daga that P.W. 1 Vatsalabai and P.W. 4 Dilip are the witnesses related to the deceased whereas P.W. 7 Dinesh and P.W. 6 Anil were his friends and they were against the appellant and were suspecting the appellant as a person who informed the police about their liquor business as is suggested in the Cross-examination of P.W. 1 Smt. Vatsalabai. It is difficult to accept the contention as raised by Mr. Daga. Merely because the witnesses are related to the deceased or that they were the friends of the deceased their testimony-cannot be discarded on this sole ground, and at the most a close scrutiny of their testimony has to be made P.W. 4 Dilip who lodged the report Ex. 34 gave also consistent version before the Court and deposed that when he was present in his house with his wife and P.W. 6 Anil Kamble his mother and Raju-deceased - were in the front room. He heard the words of his mother requesting not to abuse but the other person was abusing her and thereupon he came out alongwith his friends. In the cross-examination he confirmed that P.W. 6 Anil and P.W. 7 Dinesh had come to him as it was raining. He heard the words of his mother requesting not to abuse but the other person was abusing her and thereupon he came out alongwith his friends. In the cross-examination he confirmed that P.W. 6 Anil and P.W. 7 Dinesh had come to him as it was raining. He then deposed that when he came out of the room he found the appellant abusing his mother whereupon he asked Wasudeo the appellant not to abuse his mother and then the appellant who had a Katyar with him attempted to assault him. He tried to save himself but in the process the weapon struck on his left middle finger and he got injury. Raju then went near the appellant and held him by arms near his waist. The appellant Wasudeo then assaulted Raju by the Katyar over his back as a result or which Raju received bleeding injury. The appellant ran away from the spot. Rickshaw was brought and he asked his mother to accompany Raju to the hospital in the Rickshaw. He told them that he would reach after them. Within 15 minutes P.W. 1 Vatsalabai came back and told him that the appellant obstructed them near the electric DP. He went towards the DP with a stick in his hand and saw the appellant assaulting Raju while he was in Rickshaw on his left thigh by the dagger. Seeing him and others the appellant ran away from the spot. He and P.W. 7 Dinesh then took Raju to the hospital and at the gate the told Dinesh to take Raju to the hospital and he himself went to the Police Station and lodged his report Ex. 34. Suggestion was made to this witness that this witness have a Katyar in his hand and the appellant was trying to snatch it. He denied the same. He also denied the suggestion that the appellant was trying to save himself and this witness tried to stab him. It was pointed out that the version of this witness that he saw the appellant giving one blow on the thigh of the Raju was an omission in his report. What we see is that the omission is only as regards the exact distance from where he saw the appellant giving the blow and as regards the part of the body on which the assault was made by the appellant. What we see is that the omission is only as regards the exact distance from where he saw the appellant giving the blow and as regards the part of the body on which the assault was made by the appellant. Reading the version of this witness as a whole it appears that the version can be believed on the aspect of the first assault by the dagger on the back side of deceased Raju. His version about giving a blow by the appellant to the deceased Raju near the DP, in our view, also is worthy of reliance particularly when it stands corroborated by the medical evidence indicating injuries on the left thigh of the deceased and which injuries were found ante-mortem as already indicated by P.W. 8 Dr. Dindokar. 9. Once we find that the version given by P.W. 4 Dilip is worthy of reliance we do not think it necessary to refer to the evidence of the other three eye-witnesses-P.W. 1 Vatsalabai. P.W. 6 Anil and P.W. 7 Dinesh in details, firstly because all these three witnesses are deposing as regards the assault by the appellant on the deceased Raju almost all in the same manner in which P.W. 4 Dilip deposed in this regard. Mere omission in the version of P.W. 1 Vatsalabai that it did not happen that Raju had embraced the deceased by waist does not make her version unreliable, since it speaks of the appellant coming to her house abusing her assaulting Raju by a dagger in his hand, the appellant’s obstructing her while she was going in a rickshaw alongwith the deceased towards the hospital, near the DP and the appellant's assaulting the deceased over his things. Merely because P.W. 6 Anil Kamble and P.W. 7 Dinesh were friends of P.W. 4 Dilip and the deceased and were present there their version supporting sequence as deposed to by P.W. 4 Dilip cannot be termed to be untrustworthy there being nothing in their cross-examination indicating as such. All this evidence being worthy of reliance has rightly been believed by the learned Additional Sessions Judge and we see no error on the part of the learned Additional Sessions Judge when he records a finding that the appellant had dealt three blows with a dagger to the deceased Raju - one on his back and two on his thighs. All this evidence being worthy of reliance has rightly been believed by the learned Additional Sessions Judge and we see no error on the part of the learned Additional Sessions Judge when he records a finding that the appellant had dealt three blows with a dagger to the deceased Raju - one on his back and two on his thighs. The defence put forth by the appellant that it was in fact P.W. 4 Dilip who wanted to assault the appellant with a dagger in his hand and in the process Raju received the stab injuries on considering the evidence on record has rightly been not accepted by the learned Additional Sessions Judge. 10. The learned Additional Sessions Judge having so found has convicted the appellant for the offence punishable under Section 302 I.P.C. and sentenced him accordingly. Mr. Daga, however submitted that even from the prosecution evidence it is apparent that some sort of scuffle took place between the appellant on one hand and P.W. 4 Dilip, deceased Raju. P.W. 6 Anil and P.W. 7 Dinesh on the other hand and Raju came to be assaulted during the said scuffle on his back side Mr. Daga, however submitted that even assuming that the other two blows were given by the appellant while deceased Raju was proceeding in a Rickshaw towards the hospital near the electric DP as deposed to by the witnesses it is apparent that the injury was caused on the thigh. Both the injuries, in the submission of Mr. Daga have been caused on the non-vital part of the body in spite of an opportunity at least at the time of assaulting deceased Raju while he was proceeding in the Rickshaw on giving blow on the vital part of the body of deceased Raju being available to the appellant. Mr. Daga further submitted that P.W. 8 Dr. Dindokar did not notice any corresponding internal injuries and apparently therefore no internal damage was caused. It was indicative of the fact that ultimately the death accrued due to shock and syncope a result of hemorrhage due to multiple injuries. Mr. Daga further pointed out that even according to P.W. 8 Dr. Dindokar the death could have been caused by either of the injuries 1 and 2 the other injuries being not fatal. He further pointed out that P.W. 8 Dr. Mr. Daga further pointed out that even according to P.W. 8 Dr. Dindokar the death could have been caused by either of the injuries 1 and 2 the other injuries being not fatal. He further pointed out that P.W. 8 Dr. Dindokar did not give any separate opinion as such that either of these two injuries viz. injury no. 1 i.e. penetrated wound on back thoraic region or injury no. 2 i.e. penetrated wound over left thigh lateral aspect, was sufficient to cause death. He, therefore, submitted that either of a particular injury out of the three injuries to the deceased cannot be termed to be sufficient to cause death in the ordinary course of nature and that the death has occurred only because of the multiple injuries, each by its of not fatal. He also pointed out that P.W. 6 Anil has admitted in his cross-examination that Dilip gave two stick blows to the appellant. Raju also gave teeth-bite to the appellant. In the submission of Mr. Daga, having regard to all these aspects, neither intention of causing death nor of causing some injury as would likely cause death can be attributed to the appellant and at the most the knowledge that by his act the appellant was likely to cause the death, but without any intention to cause the same or to cause such bodily injury as was likely to cause the death, may be attributed to the appellant and he would, therefore, at the most be guilty of the offence punishable under Section 304 I.P.C. and not under Section 302 I.P.C. . 11. In so far as these submissions made by Mr. Daga are concerned, we find them to be having much substance. It is not necessary to repeat the circumstances in which the assault was made on the deceased Raju by the appellant and the nature of the injuries inflicted by him. It would be suffice to say that the submissions made in this behalf by Mr. Daga are concerned, we find them to be having much substance. It is not necessary to repeat the circumstances in which the assault was made on the deceased Raju by the appellant and the nature of the injuries inflicted by him. It would be suffice to say that the submissions made in this behalf by Mr. Daga, as indicated hereinabove, are borne out from the record and if this is opt in our view, the assault made by the appellant on deceased Raju would not come in either of the four items of the revision of Section 300 I.P.C. and the offence committed by the appellant, in our view, would, therefore, be the one punishable under Section 304 of the Indian Penal Code and not under Sec. 302 I.P.C. Disagreeing with the view taken in his behalf by the learned Additional Sessions Judge, we record the acquittal of the appellant of the offence punishable under Section 302 I.P.C. Considering the submissions made by Mr. Daga, we find that the appellant at the most could be attributed the knowledge, but not the intention of causing the death and/or to cause such bodily injury as was likely to cause the death and the knowledge that his act was likely to cause the death at the most can be attributed to the appellant and, therefore, we find him guilty of the offence punishable under Section 304 Part II I.P.C. 12. It is an undisputed position that the appellant is in custody from the date of the incident itself, initially as an under trial prisoner and later on as accused, i.e. for the last about 7 years and 9 months. In consideration thereof, we pass the following order. 13. In the result, the appeal, is partly allowed. The order of conviction and sentence imposed by the learned Additional Sessions Judge against the appellant under Section 302 I.P.C. is quashed and set aside arid instead the appellant is convicted under Section 304 Part II I.P.C. and is sentenced to the imprisonment already undergone by him and a fine of Rs. 500/- i/d further R.I. for three months. Fine should be paid within six weeks from today, failing which the appellant should be sent to the prison to serve the sentence imposed by us for default in the payment of fine. Appeal allowed partly.