JUDGMENT - VISHNU SAHAI, J.:---Through this appeal, the appellant challenges the judgment and order dated 26-12-1995 passed by the Additional Sessions Judge, Solapur in Sessions Case No. 15 of 1995 whereby he has been convicted and sentenced in the manner stated hereinafter: i) Under section 498 I.P.C. to suffer one year R.I. and to pay a fine of Rs. 200/- in default to suffer one months R.I. and ii) Under section 302 I.P.C. to suffer imprisonment for life and to pay a fine of Rs. 200/- in default to suffer one month R.I. The substantive sentences of the appellant were ordered to run concurrently. 2. In short, the prosecution case runs as under: The deceased Laxmibai was the youngest sister of Bhimrao Sable P.W. 11. She was married with the appellant in the year 1987 and thereafter started living with him in house No. 24 situated in Siddharth Housing Society, North Sadar Bazar, Solapur. For about 1½ years, the appellant treated her property but, thereafter started ill treating her and pressuring her to bring money, clothes and food grains from Bhimrao Sable. Bhimrao Sable sometimes used to provide the same to Laxmibai. The appellant continued illtreating her right till the time he killed her. Laxmibai used to complain to Bhimrao Sable P.W. 11 about this ill treatment at the hands of the appellant. About three months, prior to the incident, when she visited him, she was having marks of assault on her person and there were no bangles in her hand. When he inquired from her the reason, she told him that under the influence of liquor, the appellant used to beat her and pressurise her to bring money, Grains and clothes from him. At that time, Laxmibai stayed with Bhimrao Sable for 8 to 10 days. Thereafter, the appellant, his brother Sanjay and his parents came and on their assurance that they would treat Laxmibai properly and at the intervention of neighbours, Bhimrao Sable P.W. 11 sent back Laxmibai to the house of the appellant against her wishes. However, the appellant continued beating her and Sugalabai, Bhimrao's sister told him about this. Thereafter, the appellant, his brother Sanjay and his parents came and on their assurance that they would treat Laxmibai properly and at the intervention of neighbours, Bhimrao Sable P.W. 11 sent back Laxmibai to the house of the appellant against her wishes. However, the appellant continued beating her and Sugalabai, Bhimrao's sister told him about this. On 12-10-1994, at about 10.30 a.m. Hirabai Kale P.W. 1 and Rasika Sane P.W. 2, whose houses were situated at a distance of 15 feet from the house of the appellant, heard Laxmibai crying "My O My O" on the said cries, they went in front of the house of the appellant. They saw Laxmibai coming out from the house of the appellant followed by the appellant, who had a wooden rod in his hand. She fell down on the tin sheet in front of her house and became unconscious. There was bleeding on her left shoulder. Thereafter, Sanjay Gaikwad P.W. 5, brother of the appellant brought a rickshaw and in the same, carried Laxmibai to Civil Hospital, Solapur. 3. The evidence of Dr. Prakash Ghatole P.W. 9 of Civil Hospital, Solapur shows that on 12-10-1994 at about 11.10 a.m. while he was working as Casualty Medical Officer, Sanjay Gaikwad P.W. 5 brought Laxmibai to the hospital. He gave the history that she was beaten. The said history was recorded by Dr. Ghatole. He thereafter, examined her and found on her person the following injuries: "1. Contusion on forehead in size 2 cm. x 1 cm. 2. Contusion on neck 3 cm. x 2 cm. of size: 3. Abrasion on the neck in size 3 cm. x 1 cm.: 4. Abrasion on the neck in size 3 cm. x 1 cm. bleeding present; 5. Pressure oedema on the neck anterior part." The injury report of Laxmibai is Exhibit 30 and its perusal shows that excepting injury No. 2 which was grievous in nature, the injuries were simple. The evidence of Dr. Ghatole also shows that at about 11.45 a.m. Head Constable Prabhakar Gopale P.W. 12 who was on duty at the Police Chowky at the Civil Hospital, Solapur came to record the statement of Laxmibai. He told him that she was not in a position to give the statement. 4. The evidence of Dr. Ghatole also shows that at about 11.45 a.m. Head Constable Prabhakar Gopale P.W. 12 who was on duty at the Police Chowky at the Civil Hospital, Solapur came to record the statement of Laxmibai. He told him that she was not in a position to give the statement. 4. The evidence of Head Constable Prabhakar Gopale P.W. 12 shows that at about 5 p.m. same day, Sanjay Gaikwad P.W. 5 gave him the F.I.R. Exhibit 23. 5. The evidence of P.H.C. Sharnappa Patne P.W. 13 shows that on 12-10-1994, at about 7.45 p.m. P.H.C. Gopale sent Exhibit 23 to the Police Station, Sadar Bazar and on its basis, he registered C.R. No. 235 of 1994, and thereafter handed over the investigation to P.S.I. Dastagir Mulla P.W. 14. 6. The evidence of Dr. Ghatole P.W. 9 also shows that on 14-10-1994, at about 3.30 a.m. Laxmibai succumbed to her injuries in the Civil Hospital, Solapur. 7. The autopsy on the corpse of Laxmibai was conducted on 14-10-1994, between 10.15 to 11.15 a.m., by Dr. Ashok Kanki P.W. 4 who found on it the following injuries: "1. Sutured wound on anterior aspect of left shoulder ½' length with contusion around it 2' x ½" 2. Abrasion at left clavical region 2½' x ¼" brown transverse with fracture clavical. 3. Three linear abrasions (scratches) on left anterior aspect of neck. (1) 2½" length and (2) and (3)3" length each horizontal one below another. 4. Contusion on left lateral aspect of neck near base 3" x 2½" brown, oblique with extravisation of blood sub-cutaneous tissue. 5. Superficial incised wound on posterior aspect of neck 1" x ¼" transverse with abrasion below it 1" x 1" and multiple small abrasions over area 2" x ½" on right posterior lateral aspect of neck, brown. 6. Two abrasions on chin ½" x ¼" each brown." All the above injuries were antemortem. On internal examination, Dr. Kanki found haematoma on the left frontal and right parietal lobe. Dr. Kanki opined the cause of death as haematoma and fracture of left clavicle. 8. The investigation was conducted in the usual manner by P.S.I. Dastagir Mulla P.W. 14. On 13-10-1994, he prepared the spot panchanama and took into possession the clothes of the deceased under a panchanama which were handed over by Laxmibai's brother-in-law. Dr. Kanki opined the cause of death as haematoma and fracture of left clavicle. 8. The investigation was conducted in the usual manner by P.S.I. Dastagir Mulla P.W. 14. On 13-10-1994, he prepared the spot panchanama and took into possession the clothes of the deceased under a panchanama which were handed over by Laxmibai's brother-in-law. He made enquiry from the appellant who produced the stick Exhibit 33 in the presence of public panch Shamsing Motivale P.W. 10. The stick was seized under a panchanama Exhibit 13. After completing the investigation, P.S.I. Mulla submitted the charge-sheet on 25-11-1994. 9. The case was committed to the Court of Sessions in the usual manner where the appellant was charged on a number of counts including sections 302 and 498-A of I.P.C. He pleaded not guilty to the charges and claimed to be tried. During trial, the prosecution in all examined 14 witnesses. Three of them namely Hirabai Kale, Rasika Sane and Sanjay Gaikwad, P.Ws. 1, 2 and 5 respectively were examined as eye-witnesses. It is pertinent to mention that Sanjay Gaikwad turned hostile. The learned trial Judge however, accepted the evidence of the other two eye-witnesses as also that of Fulabai Chandanshive P.W. 6 and Bhimrao Sable P.W. 11 who deposed about the cruelty meted out to Laxmibai at the hands of the appellant and convicted and sentenced the appellant in the manner stated in para 1 above. Hence, this appeal. 10. We have heard Mr. Pratap Patil holding for Mr. T.E. Mane for the appellant and Ms. Usha Kejriwal, Additional Public Prosecutor for the respondent. We have gone through the entire material on record. In our view this appeal deserves to be partly allowed, in as much as in place of an offence punishable under section 302 I.P.C., one under section 304(2) I.P.C. is made out. We however, feel that the conviction and sentence of the appellant for the offence under section 498-A I.P.C. merits no interference. So far as the involvement of the appellant in the main incident is concerned, the same is brought home by the reliable testimony of Hirabai Kale and Rasika Sane, P.Ws. 1 and 2 respectively. In para 2, we have set out the prosecution story on the basis of the recitals contained in their evidence. So far as the involvement of the appellant in the main incident is concerned, the same is brought home by the reliable testimony of Hirabai Kale and Rasika Sane, P.Ws. 1 and 2 respectively. In para 2, we have set out the prosecution story on the basis of the recitals contained in their evidence. They stated that they were the neighbours of the appellant; his house being at a distance of about 15 feet from their house. On the date of the incident at about 10.30 a.m. they heard the cries of "MYO MYO". When they came in front of the appellant's house, they found Laxmibai coming out therefrom and the appellant with a wooden stick following her. They also found that Laxmibai had a bleeding injury on her left shoulder and she fell down unconscious as a result of her injury. 11. We have examined the evidence of Hirabai Kale and Rasika Sane, P.Ws. 1 and 2 and are satisfied that it inspires confidence. It should be borne in mind that they are the natural witnesses of the incident in as much as their houses were situated at a distance of 15 feet from the house of the appellant, wherein the incident took place. Their evidence that on hearing the cries of Laxmibai "MYO MYO", they came in front of the house of the appellant and saw her coming out therefrom followed by the appellant who had a stick in his hand, receives assurance from the circumstance that the medical evidence shows injuries attributable to a stick on her person. It appears from their evidence as is also in tune with the probabilities that the appellant must have been assaulting her with the stick which he was having. It is pertinent to mention that both these eye-witnesses had no rancour or illwill against the appellant and in our view, they had no earthly reason to falsely implicate him. We may also mention that although they were subjected to an extensive cross-examination, but excepting omissions in their statement under section 161 Cri.P.C. which do not militate against the core of their evidence, in respect of the main incident, nothing could be extracted therefrom. 12. In our view, the evidence of Hirabai Kale and Rasika Sane inspires confidence and is sufficient for concluding that the appellant made a homicidal assault on Laxmibai on the date and time mentioned by the prosecution. 12. In our view, the evidence of Hirabai Kale and Rasika Sane inspires confidence and is sufficient for concluding that the appellant made a homicidal assault on Laxmibai on the date and time mentioned by the prosecution. 13. We also feel that the prosecution has proved beyond reasonable doubt the commission of the offence under section 498-A I.P.C. by the appellant through the evidence of Bhimrao Sable P.W. 11 (brother of Laxmibai) and Fulabai Chandanshive P.W. 6, a neighbour of Bhimrao Sable P.W. 11. In para 2, we have set out the averments pertaining to the cruelty meted out to Laxmibai by the appellant on the basis of averments contained in the evidence of Bhimrao Sable and consequently, do not want to over burden our judgment by repeating them. Fulabai Chandanshive P.W. 6 is a neighbour of Bhimrao Sable P.W. 11. Her evidence shows that when Laxmibai used to visit her brother's house, she used to complain to her about the ill treatment meted out to her by the appellant who was repeatedly asking her to bring grains etc. from Bhimrao Sable P.W. 11. She also deposed about the visit of Laxmibai to Bhimrao Sable's place about three months prior to the incident (preferred to in para 2); she stated that at that time Laxmibai was having injuries on her person. It is pertinent to mention that although Bhimrao Sable P.W. 11 and Fulabai Chandanshive P.W. 6 were subjected to extensive cross-examination but, nothing could be extracted therefrom which would render their evidence suspect. In our view, their evidence brings home the guilt of the appellant for the offence under section 498-A I.P.C. 14. We however, feel that the learned trial Judge erred in convicting the appellant for the offence under section 302 I.P.C. In our view, only an offence under section 304(2) I.P.C. is made out against him. The injuries suffered by Laxmibai do not bring the act of the appellant in the four corners of any of the four clauses of section 300 I.P.C. the breach of which is punishable under section 302 I.P.C. We have earlier set out Laxmibai's injuries and we find that excepting fracture on left clavicle, she did not sustain any grievous injury. It is pertinent to mention that the autopsy surgeon did not state that the injuries suffered by Laxmibai were sufficient in the ordinary course of nature to cause death. It is pertinent to mention that the autopsy surgeon did not state that the injuries suffered by Laxmibai were sufficient in the ordinary course of nature to cause death. It should also be borne in mind that Laxmibai was not done to death on the spot but died two days later in the hospital. From the evidence, it appears that the object of the appellant in beating Laxmibai was to pressurise her to bring money and grains etc. from her brother Bhimrao Sable P.W. 11 and not to kill her. But, be that as it may, it can be safely said that when the appellant inflicted blows with a wooden stick on Laxmibai some of which were on vital parts of her body, he had the knowledge that, he could cause her death in terms of Clause Thirdly of section 299 I.P.C. In our view, on the over all facts, it would be prudent to convict the appellant for the offence under section 304(2) I.P.C. in place of one under section 302 I.P.C. 15. The only question which survives is the question of sentence. So far as the offence under section 498-A I.P.C. is concerned, in our view the sentence of one year R.I. and a fine of Rs. 200/- and one month R.I. in default awarded thereunder, cannot be said to be excessive. So far as the offence under section 304(2) I.P.C. is concerned, in our view a sentence of seven years R.I. would meet the ends of justice. 16. In the result, this appeal is partly allowed. Although we maintain the conviction and sentence of the appellant for the offence under section 498-A I.P.C. but, we acquit him for the offence under section 302 I.P.C. and set aside his sentence thereunder and instead find him guilty for the offence under section 304(2) I.P.C. and sentence him to undergo seven years R.I. for the same, which sentence shall run concurrently with his substantive sentence under section 498-A I.P.C. The appellant is in jail and shall serve out his sentence. In case he has paid the fine for the offence under section 302 I.P.C., the same shall stand refunded to him. Appeal partly allowed. -----