JUDGMENT - Smt. RANJANA DESAI, J.:---In this appeal, the judgment and order dated 6th November, 1996 passed by the learned Sessions Judge, Greater Bombay in Sessions Case No. 606 of 1993 is under challenge. By the impugned judgment and order, the learned Sessions Judge has convicted the appellant accused under section 302 of the Indian Penal Code and sentenced him to suffer imprisonment for life. The learned Sessions Judge has also ordered the appellant to pay a fine of Rs. 1,000/-, in default of payment of fine, the appellant has to undergo R.I. for six months. 2. Shortly stated the prosecution story is as under :--- The accused and one Bhagwan Sakharam Pawar, who is the father of deceased Deepak, were friends. It is the case of the prosecution that about three months prior to March 1993, the accused had requested Bhagwan Pawar for some financial assistance. Bhagwan Pawar had given him a loan of Rs. 3,000/- for purchasing a sewing machine. Out of the said amount of Rs. 3,000/-, Rs. 500/- were paid by the accused. Bhagwan Pawar had demanded the remaining amount of Rs. 2,500/-, but the accused had not paid the same. 3. On 25th March, 1993, which is the day of the incident, Deepak, the deceased, had left his hut for some work and Bhagwan was alone in his hut. At about 11.00 a.m. or so, the accused came to his house. Both of them went to the house of the accused. Bhagwan had lunch in the house of the accused. After taking lunch Bhagwan came back to his hut. At about 3.00 p.m. his son Deepak came home and slept on a wooden bakda. 4. At about 4.30 p.m. or so, Bhagwan came out of his hut in order to purchase bidi. He was chitchatting with some persons at the bidi shop of one Jamna Prasad Gupta (P.W. 4). One Ravi Pethade (P.W. 3) was present there. At that time the accused came near the bidi shop. His clothes were stained with blood. He was holding an iron pipe in his hand. The accused told Bhagwan that he had murdered his son and that he should go to his hut and see. The accused was drunk. 5. Bhagwan along with Ravi and others rushed to his hut. He saw Deepak lying in a pool of blood. Bhagwan rushed to call the police. He was holding an iron pipe in his hand. The accused told Bhagwan that he had murdered his son and that he should go to his hut and see. The accused was drunk. 5. Bhagwan along with Ravi and others rushed to his hut. He saw Deepak lying in a pool of blood. Bhagwan rushed to call the police. He found P.W. 1 Police Naik-Shivaji Yadav on Bandobast duty at the Naka. After the incident was narrated by Bhagwan, the police went to the scene of offence. After ascertaining the facts, the police took the accused in custody. 6. The accused was taken to Kandivali Police Station. P.W. 1-Police Naik-Shivaji Babaji Yadav lodged a complaint (Exhibit 5). Investigation of the crime was set into motion. After completion of the investigation, the accused came to be charged as aforesaid. 7. In support of its case, the prosecution has examined as many as 12 witnesses which include P.W. 1-Police Naik-Shivaji Babaji Yadav, who had lodged the complaint; P.W. 2 Bhagwan Pawar, who is the father of the deceased; P.W. 3 Ravi Pethade, who was standing at the bidi shop; P.W. 4 Jamna Prasad Gupta, who is the owner of the said bidi shop, P.W. 5 Sanjay Pujari, who is the panch to the panchanama of discovery of iron pipe at the instance of the accused; P.W. 6 Ganpat Shedekar, a neighbour of Bhagwan Pawar; P.W. 7 Maruti Shinde, a panch who has turned hostile, P.W. 8 Dr. Shashikala Nadkarni, who had examined the accused as he had some injuries on his person; and P.W. 9 Dr. Vasant Vanmore, who had conducted post-mortem on the deceased. Details of investigation have been given by P.W. 11 A.P.I. Ramesh Gavit and P.W. 12 P.I. Suresh Bhovmkar. 8. The defence of the accused as apparent from his statement under section 313 of the Criminal Procedure Code is that on 25th March, 1993 he was renovating his hut. At that time, one police person came there. He asked him whether he had obtained any permission for house repairs. When the accused said that he had not obtained permission, he and his neighbour were taken to Kandivali Police Station. On the way the Police Constable demanded an amount of Rs. 1,000/- for setting them free. The accused paid Rs. 400/- to him. The said constable gave him one chit on which something was written. When the accused said that he had not obtained permission, he and his neighbour were taken to Kandivali Police Station. On the way the Police Constable demanded an amount of Rs. 1,000/- for setting them free. The accused paid Rs. 400/- to him. The said constable gave him one chit on which something was written. Thereafter he came home and started his work. After some time, one person by name Salim came to him. Both of them went to drink liquor. Thereafter he went to the place of one Gopal Shetty, but his house was locked. When he was coming back, some three persons accosted him. He knew two of them. They started quarrelling with him and assaulted him on his head with stones. Thereafter he went to Hanuman Nagar Police Chowki to lodge his complaint. This was at about 9.00 a.m. From that chowki he was taken to Samata Nagar Police Chowki. From there prior to 11.00 a.m. he was taken to Bhagwati Hospital where he was treated. He was given an injection. He became unconscious. He regained consciousness. At that time he was at Samata Nagar, Kandivali Police Station. It is the case of the accused that he has been falsely implicated in the case. 9. The evidence led by the prosecution found favour with the learned Sessions Judge and the accused came to be convicted as aforesaid. Hence this appeal. 10. We have heard at some length Miss Khot. The learned Counsel appointed for the accused. We have also heard Smt. Bhonsale, the learned A.P.P. With the assistance of the learned Counsel we have gone through the record. 11. Miss Khot assailed the impugned judgment and order on several counts. She submitted that the prosecution has suppressed genesis of its case. The prosecution has not established the motive. There being no eye-witness to the incident, motive plays a very important role and hence the prosecution case has received a serious dent. Miss Khot also contended that the evidence of the prosecution witnesses does not inspire confidence. It is the case of the prosecution that the accused went to P.W. 2 Bhagwan Pawar with a pipe and confessed that he had murdered his son. The accused was immediately arrested. There is no arrest panchanama on record. If he was arrested on the spot, the pipe which he was carrying, must have been taken charge of. It is the case of the prosecution that the accused went to P.W. 2 Bhagwan Pawar with a pipe and confessed that he had murdered his son. The accused was immediately arrested. There is no arrest panchanama on record. If he was arrested on the spot, the pipe which he was carrying, must have been taken charge of. The prosecution has not explained what has happened to the said pipe. In spite of this case, the prosecution has examined a panch witness to prove discovery of pipe at the instance of the accused, that too on 31st March, 1993. If the accused was carrying pipe, when he went to Bhagwan Pawar and disclosed that he had committed murder of Deepak, then there is no question of his hiding the pipe under a bush and his making statement on 31st March, 1993 that he would discover it, because the accused was immediately apprehended. Miss Khot urged that this creates doubt about the prosecution story and this Court will have to discard the discovery evidence. 12. Miss Khot also urged that the fact that there were injuries on the accused is established by Dr. Shashikala Nadkarni (P.W. 8) who had examined the accused. The accused has in his defence contended that he had gone to lodge his complaint to the Police Station. The prosecution has not explained the injuries caused to the accused. Therefore, the prosecution has suppressed the real incident. Only conclusion which can be drawn from this is that the prosecution has not established its case beyond reasonable doubt and hence accused is entitled for an acquittal. 13. In the alternative, Miss Khot submitted that the prosecution has not established the motive. There is no evidence of any premeditation. There is absence of intention. Hence at the most the accused could only be convicted under section 304 Part II of the Indian Penal Code and hence this Court should bring down his conviction to section 304 Part II. 14. As against this, Smt. Bhonsale, the learned A.P.P. supported the order of conviction and sentence. She submitted that the prosecution has led cogent and consistent evidence which inspires confidence. The accused had made extra judicial confession to P.W. 2 Bhagwan Pawar, P.W. 3 Ravi Pethade and P.W. 4 Jamna Prasad Gupta. There is no reason to disbelieve these witnesses. 14. As against this, Smt. Bhonsale, the learned A.P.P. supported the order of conviction and sentence. She submitted that the prosecution has led cogent and consistent evidence which inspires confidence. The accused had made extra judicial confession to P.W. 2 Bhagwan Pawar, P.W. 3 Ravi Pethade and P.W. 4 Jamna Prasad Gupta. There is no reason to disbelieve these witnesses. Besides, there is prompt lodging of F.I.R. Smt. Bhonsale therefore urged that no interference is called for with the impugned judgment and order of conviction. 15. We have given our serious consideration to the submissions advanced by both the sides. It is true that though the prosecution has come out with a case that the accused had taken loan of Rs. 3,000/- from P.W. 2 Bhagwan Pawar, the father of the deceased, and that though Bhagwan Pawar had made a demand to the accused that the said money should be repaid, the accused had not paid the said amount, the prosecution has not been able to establish that the accused had any motive to do away with Deepak, the son of P.W. 2 Bhagwan Pawar. In fact, it is the case of the prosecution that on the day of the incident the accused had called P.W. 2 Bhagwan Pawar to his house for lunch and in fact they had lunch together. No evidence is adduced to establish motive. Therefore, in our opinion, the prosecution has not made out motive. 16. However, in our opinion, the evidence of P.W. 2 Bhagwan Pawar, the father of the deceased, inspires confidence. He has stated that on the day of incident, at about 4.30 p.m. he had gone to purchase bidi from the shop of Jamna Prasad Gupta. At that time, the accused came there with iron pipe in his hand. His clothes were stained with blood. He was drunk and he told him that he had murdered his son and he should go and see. In the cross-examination of this witness nothing has come out which can persuade us to discard his testimony. P.W. 3 Ravi Pethade, who was at the relevant time standing at the bidi shop, as well as P.W. 4 Jamna Prasad Gupta, the owner of the bidi shop, have corroborated P.W. 2 Bhagwan Pawar as regards the extra judicial confession. Even the evidence of these two witnesses, i.e. P.W. 2 and P.W. 4, inspires confidence. They are independent witnesses. P.W. 3 Ravi Pethade, who was at the relevant time standing at the bidi shop, as well as P.W. 4 Jamna Prasad Gupta, the owner of the bidi shop, have corroborated P.W. 2 Bhagwan Pawar as regards the extra judicial confession. Even the evidence of these two witnesses, i.e. P.W. 2 and P.W. 4, inspires confidence. They are independent witnesses. We have no hesitation in accepting their testimonies as truthful. 17. We have, however, some reservations about the evidence of P.W. 6 Ganpat Shedekar who is the neighbour of P.W. 2 Bhagwan Pawar. He has stated that he had seen the accused coming out of the hut of Bhagwan with an iron pipe in his hand and that the clothes of the accused were stained with blood. However, the conduct of this witness persuades us to discard his evidence. He says that on seeing this, he was frightened and he closed his door. He had not disclosed this incident to anybody and he opened his door after hearing the shouts. To us, his evidence appears to be not worthy of credence. He says that he went to clear his mouth and at that time he saw the incident. The tenor of his evidence convinces us that he is not a truthful witness. We, therefore, disbelieve his evidence. 18. We are entirely in agreement with Miss Khot, the learned Counsel for the accused that the evidence as regards discovery of iron pipe deserves to be discarded. The story of the prosecution is that the accused came with an iron pipe to the bidi shop and declared that he had murdered the son of Bhagwan. If this is the case of the prosecution, then the iron pipe should have been taken charge of by the police when they arrested the accused. Arrest panchanama is not on record and discovery of the iron pipe at the instance of the accused is shown on 31st March, 1993. If the accused was apprehended immediately with an iron pipe in his hand, there was no question of his hiding it anywhere. We have therefore no hesitation in rejecting the discovery of iron pipe. 19. The clothes of the accused were attached under panchanama Exhibit 21. One of the panchas has turned hostile. However the other panch P.W. 10-Ashok Mandke and the Investigating Officer has proved the panchanama Exhibit 21. We have therefore no hesitation in rejecting the discovery of iron pipe. 19. The clothes of the accused were attached under panchanama Exhibit 21. One of the panchas has turned hostile. However the other panch P.W. 10-Ashok Mandke and the Investigating Officer has proved the panchanama Exhibit 21. There is no reason to disbelieve these witnesses. However, the Chemical Analyser's report says that blood found on the clothes of the accused was human blood but it's group could not be determined. In any case finding of human blood on the clothes of the accused is another circumstance indicating his involvement. 20. In the ultimate analysis we are of the opinion that though discovery of pipe at the instance of the accused and evidence of P.W. 6 Ganpat Shedekar have to be discarded, other circumstances are strong enough to convict the accused. P.W. 2 Bhagwan's evidence is cogent and reliable. He has stood the test of cross-examination very well. The accused has confessed before Bhagwan that he had murdered his son. P.W. 3 Ravi and P.W. 4 Jamna Prasad Gupta have supported this extra-judicial confession. They are independent witnesses. They have no reason to falsely implicate the accused. Their evidence is consistent with that of P.W. 2 Bhagwan. We therefore hold that the accused did confess before these three persons that he had murdered the son of P.W. 2 Bhagwan. The fact that the accused had with him an iron pipe; that his clothes were stained with human blood; that there were injuries on his person and that he was immediately arrested are also clinching circumstances indicating his involvement. The F.I.R. is lodged promptly. All these circumstances unerringly point out to the guilt of the accused. 21. The question is which offence has the accused committed. The prosecution has not established any motive. There is no evidence of any premeditation or planning. The accused had received several injuries which the prosecution has not been able to satisfactorily explain. The prosecution witnesses have stated that the accused was in a drunken state. In the facts of this case therefore even if the injury is caused on the vital part of the body, it is difficult to attribute to the accused intention to cause death. In our opinion the accused can be held guilty for having committed offence under section 304 Part II and not under section 302 of the Indian Penal Code. In the facts of this case therefore even if the injury is caused on the vital part of the body, it is difficult to attribute to the accused intention to cause death. In our opinion the accused can be held guilty for having committed offence under section 304 Part II and not under section 302 of the Indian Penal Code. Hence we pass the following order :--- ORDER Appeal is partly allowed. Conviction and sentence of appellant accused Gangadhar Gopal Nair under section 302 of the Indian Penal Code is set aside. He is convicted for the offence under section 304 Part II of the Indian Penal Code. The appellant-accused is, admittedly, in jail from 25th March, 1993. He has already undergone about 8 years imprisonment. In our opinion, for the offence under section 304 Part II sentence already undergone by him should suffice. For the offence under section 304 Part II appellant Gangadhar Gopal Nair is sentenced for the period of imprisonment already undergone by him. Appellant Gangadhar Gopal Nair be released from custody unless he is otherwise required in some other case. Appeal partly allowed. -----