JUDGMENT (ORAL) D.G. Deshpande, J. - Heard Advocate for the appellant/accused and Public Prosecutor for the State. 2. This is an appeal by the accused against his conviction under section 302 of the Indian Penal Code, by which he is sentenced to imprisonment for life and fine of Rs. 10,000/- in default to undergo Simple Imprisonment for 6 months. 3. The facts giving rise to the prosecution are as under: On 7-3-1997 at about 23.00 hours at Aradi Bandh, St. Cruze the accused assaulted Vishwanath Shivram Naik alias Veerappa Shivappa Tigadi who was the driver of rickshaw No. GA-Ol';'T0049 with fists, kicks, jumps, etc. dragged him on the road and threw him in the nearby compound causing his death and also threatened witnesses who had gathered at the scene with dire consequences. The accused did not raise specific defence, but it was suggested to the witnesses in cress examination that the deceased was walking in a drunken condition and a car dashed against the deceased, throwing him down. It was also suggested to other witnesses that the deceased was walking along the road drunk, and was dashed by a Fiat car and that the deceased was caught between the gate of the garage and the car. In written statement filed by the accused during his examination under Section 313 Cr. P.C. he has contended that on 7-3-1997 at around 11 p. m., when he had come on the road, after dinner while approaching towards the bandh, he saw one person in fully drunken condition walking in zig zag and unbalance manner. At that time, he saw one Fiat car coming in opposite direction in speed, which took sudden sharp turn to enter the compound of Mahesh Karapurkar. The drunken who was near the gate, got confused on seeing the car taking sudden turn and the car hit him and was sandwiched between the bonnet of the car and the compound wall of Mahesh Karapurkar. It is clear that the accused is not certain in his defence. The Advocate for the accused though challenged the entire Judgment and its reasoning, however, ultimately, he contended that the conviction of the accused under Section 302 I.P.C. is wrong and the offence should not be said to be the one under Section 302 I.P.C., but it should be at the most under Section 304, Part II. The Advocate for the accused though challenged the entire Judgment and its reasoning, however, ultimately, he contended that the conviction of the accused under Section 302 I.P.C. is wrong and the offence should not be said to be the one under Section 302 I.P.C., but it should be at the most under Section 304, Part II. Thereafter, the Counsel for the appellant did not press other points. In view of this submission, we are considering only this last point raised by the Advocate for the appellant. Therefore, it is necessary to consider, while deciding this appeal, the last submission, i.e. whether the conviction should be treated under Section 302 I.P.C. or under Section 304, Part II. 4. From the medical evidence, it is clear that the deceased died due to multiple injuries which were more than 30 in number. All those injuries were caused by fist and kick blows. The injuries are 38 in number. There are abrasions, contusions, bruises, lacerations etc. They are on the face, neck, shoulder, arms, Chest, thigh, knees etc. Dr. Rodrigues, PW.14 opined that they were caused by blunt object and were ante-mortem and that the death was due to haemorrhage and shock, as a result of the injuries to the chest, abdomen and head, which were necessarily fatal in nature. 5. However, the Counsel for the appellant contends that the entire prosecution case is based on the evidence of only one eye witness, i.e. PW. 2, Mahesh Karapurkar. This witness, in his examination-in-chief, has stated that at the relevant time he was returning home in his Fiat car, when he saw one dark blue colour goods rickshaw and - the accused was assaulting one person who was naked. The accused was assaulting with his legs. He, thereafter, came back to his house with his family members who were in the said car, i.e. his son aged about 15 years and one lady by name Radhabai Narvekar. After some time when he reached home, he heard some noise like something being hit on the front door of his house. The noise was repeated two or three times. He asked from inside his house without opening the door as to who was there and the accused replied, he was Ratnapal, the accused. After some time when he reached home, he heard some noise like something being hit on the front door of his house. The noise was repeated two or three times. He asked from inside his house without opening the door as to who was there and the accused replied, he was Ratnapal, the accused. The accused asked him to open the door repeatedly, but the witness did not open the door because his wife was screaming out of fear. He, however, opened the window and saw that the accused was there. He was furious and one person was lying naked by the side of the verandah. He also identified the deceased as Vishwanath Naik who used to drive rickshaw. The witness asked the accused as to what was wrong and the accused told the witness that since he (witness) had seen the accused assaulting deceased and the witness had blown the horn of his car, that the accused had brought the deceased to witness's compound wall to see what the witness would do. In the meantime, other persons came there. They asked the accused to take away Vishwanath from verandah. Thereafter, the accused threatened all those who had gathered to kill if they informed his name to anybody. 6. Counsel for the appellant contended that the entire evidence given by the witnesses appears to be unbelievable because the incident as narrated was highly improbable that is that the accused after assaulting the deceased would bring him to the verandah or compound of the witness; ask the witness to open the door and confess to have assaulted and even taken away the deceased outside the compound. However, the witness, admittedly, is an independent witness, he has no enmity against the accused and there are no reasons to disbelieve his evidence even after searching cross examination. 7. It was further contended by the Counsel of the appellant that even as per this witness, that is as per the admissions in cross examination, he saw the accused giving only one kick on Vishwanath and, therefore, it should not be said that the offence proved by the prosecution was of murder under Section 302 I.P.C. 8. It is true that PW.2 in his cross examination has admitted that he had seen the accused giving only one kick on Vishwanath, but he has not stated on which part of the body kick was given. It is true that PW.2 in his cross examination has admitted that he had seen the accused giving only one kick on Vishwanath, but he has not stated on which part of the body kick was given. Even if the evidence of PW.2 is accepted, the fact remains that he had seen accused assaulting Vishwanath from his car; though he had blown horn of his car, the accused continued to assault Vishwanath and immediately thereafter, the accused brought Vishwanath into the compound by the side of verandah. 9. The witness PW.2 is supported in this regard by other prosecution witnesses and, therefore, there is no doubt that it was accused who assaulted the victim Vishwanath. 10. Once the fact of assault is proved and particularly in the absence of any cogent defence being raised by the accused and once it is proved from the medical evidence that there were multiple injuries on the body of the victim, the trial Court was justified in coming to the conclusion that the accused was guilty. However, in our opinion, the offence could not be said to be one under Section 302 I.P.C. because there is no direct evidence of the prosecution that the accused intended to cause death of the victim, nor there is evidence that particular injury caused by the accused and witnessed by PW.2, has resulted in death. 11. When questioned, the learned Public' Prosecutor could not support the conviction of the accused under Section 302 I.P.C. Therefore, considering the circumstances, the prosecution case and the evidence that is brought on record, the conviction is required to be maintained, but it is altered from Section 302 I.P.C. to Section 304, Part II. Hence the following Order: 12. The appeal is partly allowed. The conviction of the accused under Section 302, 506 (11) I.P.C. is set aside and he is convicted under Section 304, Part II and sentenced to Rigorous Imprisonment for 4 years and fine of Rs. 2,000/-, in default, R.I. for 3 months. The accused will be entitled to set of for the sentence already undergone. Appeal partly allowed accordingly.