JUDGMENT - KANADE V.M., J.:---The appellant was charged, under section 302 of the Indian Penal Code, for having committed the murder of Jainabai Palwar, by the Additional Sessions Judge, Bhandara. He was convicted by the trial Court under section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life and also to pay a fine of Rs. 500/- and in default to suffer further R.I. for 9 months in the Sessions Trial No. 15/96 vide judgment and order dated 28-8-1997. 2. The prosecution case, in brief, is that deceased Jainabai was the grand mother-in-law of the appellant/original accused i.e. she was the grand mother of his wife. There was a dispute between the accused and his wife and his wife was staying separately with her grand mother Jainabai. As the appellant was not maintaining his wife Lilabai and because he was ill-treating her and demanding dowry from her, a criminal proceeding was initiated by his wife Lilabai under section 498-A and a maintenance proceedings under section 125 of the Cri.P.C. was also filed by her and her application was allowed. However, the appellant had not deposited any amount towards the maintenance. It is the case of the prosecution that the appellant/accused had grudge against Jainabai as he felt that she had instigated his wife Lilabai to file the maintenance proceedings against him. On 21-11-1995 the grand mother of Lilabai i.e. Jainabai was going to the field at about 12 noon when the accused saw her. When she arrived in front of the hotel of one Nandlal Nagpurkar, the accused, all of a sudden, started beating her by his hands and legs. P.W. 1 Sunil Thate thereafter came to the scene of the offence and intervened and told the accused not to beat his grandmother. Thereafter, Sunil Thate went to the Police Station and narrated the incident to the Police. In the meantime, Jainabai died as a result of the kicks and blows which were given by the accused. The F.I.R. was lodged by Sunil Thate and P.W. 5 Haribahu recorded the complaint and drew the printed F.I.R. Exhibit 22 and obtained his signatures. The statements of the witnesses were recorded. The accused was arrested and panchanama was drawn by the panchas. Charge-sheet was filed against the accused. Sessions Court framed charge under section 302 of the Indian Penal Code. The statements of the witnesses were recorded. The accused was arrested and panchanama was drawn by the panchas. Charge-sheet was filed against the accused. Sessions Court framed charge under section 302 of the Indian Penal Code. The accused pleaded not guilty to the said charge. The defence of the accused was of total denial. The trial Court on the basis of the evidence adduced by the prosecution, convicted the accused under section 302 of the Indian Penal Code and sentenced him to suffer R.I. for life and also directed him to pay a fine of Rs. 500/- and in default to suffer further R.I. for 9 months. 3. The prosecution examined 10 witnesses, out of which P.W. 1 Sunil, P.W. 2 Nandlal, P.W. 3 Shila and P.W. 8 Narendra were examined as eye-witnesses. The other witnesses examined, were the panch witnesses, Investigating Officer and Doctor. 4. We have heard the learned Counsel appearing on behalf of the accused and also the learned A.P.P. appearing on behalf of the State. The learned Counsel appearing on behalf of the accused has taken us through the evidence on record including the oral and documentary evidence and also the judgment and order of the trial Court. 5. The learned Counsel appearing on behalf of the accused submitted that he wanted to make submissions only in respect of the offence which is committed by the accused and he did not wish to challenge the said judgment and order on merits. He submitted that even if the evidence adduced by the prosecution is accepted even then it cannot be said that the accused has committed offence under section 302 of the Indian Penal Code. He submitted that at the most the accused could be convicted under section 326 of the Indian Penal Code. He submitted that all the witnesses had consistently stated that the accused had only given fist blows and kick blows to the deceased and, therefore, it cannot be said that there was either any intention to commit the murder of the deceased or the knowledge that the injuries caused by him would be sufficient in the ordinary course of nature to cause death. 6. 6. The learned Counsel appearing on behalf of the appellant relied on the judgment of the Apex Court in the case of (Lal Mandi v. State of W.B.)1, reported in 1995(3) Supreme Court Cases 603, wherein the Apex Court in the facts and circumstances of the said case had held that : "Merely because the appellant had given a kick to the deceased which resulted in fracture of ribs. On facts, he did not share common intention with the co-accused in causing the death of the deceased." In our view, the said judgment of the Apex Court will not be applicable to the facts of the present case. In the matter before the Apex Court there were number of accused who had given various blows to the deceased and the appellant, in the said case, had only given one kick which resulted in the fracture of ribs. The Apex Court on facts of the said case had held that he did not share common intention with the co-accused. In the present case, the appellant had continuously assaulted the deceased with kicks and blows. The submission of Shri Daga, learned Counsel appearing on behalf of the accused is, therefore, cannot be accepted. 7. The learned A.P.P. appearing on behalf of the State, however, vehemently opposed the submissions made by the learned Counsel appearing on behalf of the accused. He submitted that the deceased was an old lady of 65 years of age and was the grant mother-in-law of the accused. He submitted that the accused had continuously beaten the deceased with kicks and fist blows till she became unconscious. He submitted that therefore, the appellant/accused was aware that the deceased was an old lady and that injury which was caused by him was sufficient in the ordinary course of nature to cause death. He submitted that, therefore, the findings of the trial Court to be confirmed. 8. We have perused the evidence on record. P.W. 1 Sunil Thate who is the grand son of the deceased Jainabai, has been examined as an eye-witness. He stated that there was a dispute between the appellant/accused and his wife Lilabai who is the sister of P.W. 1 Sunil. 8. We have perused the evidence on record. P.W. 1 Sunil Thate who is the grand son of the deceased Jainabai, has been examined as an eye-witness. He stated that there was a dispute between the appellant/accused and his wife Lilabai who is the sister of P.W. 1 Sunil. He has further deposed that the accused used to ill-treat his sister Lilabai and used to demand dowry and due to that a case under section 498-A of the Indian Penal Code was filed against the accused and a case for maintenance was also filed in the Court of the Judicial Magistrate. He has stated that on the date of the incident i.e. 21-11-1995 the accused started beating his grand mother. At that time, he was in the house. However, the wife of Narendra Gajbhiye and her two small daughters came to his house and informed him that the accused was beating his grand mother. Therefore, he rushed and tried to rescue her. However, according to this witness, the accused had also given fist blows to him and said that he would kill him. He therefore, went to the Police Station. When he returned from the Police Station, he noticed that his grand mother had expired. P.W. 2 Nandlal is an another eye-witness who owned a tea stall and he also saw the accused beating Jainabai by hands and legs. As a result of the beating the deceased died on the spot. He has stated that initially she became unconscious and subsequently she died. P.W. 3 Sheelabai is another independent witness who was at the scene of the offence and she had gone for fetching water and that time she saw the accused beating Jainabai. She has mentioned that the accused was beating her in front of the Hotel of Nandlal. She has corroborated that the complainant Sunil tried to intervene. However, the accused gave two slaps to Sunil and said that he would kill him. Though this witness has stated that the accused caught the legs of deceased Jainabai and dragged her up to tamarine tree, this statement has been proved to be a contradiction by the defence as in the cross-examination she has admitted that this portion, that the accused had dragged the deceased up to tamarine tree, was not recorded in her police statement. Similarly, P.W. 8 Narendra also has stated that he had personally seen the accused beating Jainabai with his hands and legs and even after she fell down on the ground the accused continued to beat her by legs and hands. This witness has also stated that the accused caught her legs and dragged her up to tamarine tree which was at 100 ft. from the Gram Panchayat Office and then lifted her and threw her down. However, in the cross-examination, the defence has proved that the part of the statement of the accused dragging the deceased up to tamarine tree and lifting her and throwing her down, was not recorded by the police and this contradiction is proved by the defence. The prosecution has examined P.W. 6 Dr. Umakant who had performed the post-mortem on the deceased and stated that while examining the deceased, he found the following injuries in Column No. 17. 1. Lacerated wound one and half x half cm. scalp deep frontal region of the skull, brown blackish. 2. Lacerated wound ½ x ¼ cm. x ½ cm. brownish black colour outer canthus of eye. 3. Pressure abrasion, 4 x 4 cm. black colour, irregular, infra orbitan region, with periorbital oedematous contusion. Pinkish brown in colour. 4. Pressure abrasion, 2 x 3 cm. over the chin submetal region. 5. Scratch abrasion irregular, brownish yellow, right scapular region, size 6 x two and half, oblique. 6. Scratch abrasion brownish yellow 2 x 3 cm. left renal region. Doctor has further said that on internal examination, he found the following injuries; Thorax :---fracture on right side 6th, 7th, 8th, 9th ribs confirmed. fracture on left side 7th, 8th, 9th, 10th also confirmed. Lungs :--- Contused at places. Chest was also contused at places. Left lung was also contused with haemothorax. Doctor in the post-mortem notes has stated that the cause of death was due to respiratory distress and shock due to multiple ribs fractures. He has also given opinion that such fracture was possible due to continuous beating of hands and fist and that this fractures were sufficient in the ordinary course of nature to cause death. 9. In our view, taking consideration of the above evidence on record, it cannot be said that the accused had committed offence under section 302 of the Indian Penal Code. 9. In our view, taking consideration of the above evidence on record, it cannot be said that the accused had committed offence under section 302 of the Indian Penal Code. The prosecution has not proved that the accused had dragged the deceased by her feet or had thrown her down with force. The prosecution has, however, clearly established that the accused had assaulted the deceased by means of kicks and blows. Thus, it cannot be said that the accused had an intention to cause the death of the deceased. However, from the nature of the injuries which are found on the person of the deceased, it is clear that the accused had intention to cause injuries to the deceased and he had knowledge that these injuries were likely to cause death. In our view, therefore, the said offence would squarely fall under section 304 Part I of the Indian Penal Code and not under section 302 of the Indian Penal Code. The submission of Shri Daga that the case of the accused would fall under section 326 of the Indian Penal Code therefore, cannot be accepted. The deceased was an old lady of 65 years of age and it has been established that the accused had continuously given fist blows and kick blows to the deceased. The accused, thus, clearly had an intention to cause injuries and also knowledge that such injuries caused to an old lady were likely to cause death. 10. In the result, the appeal is partly allowed. The finding of the Sessions Court of conviction of accused under section 302 of the Indian Penal Code is quashed and set aside and accused is convicted under section 304-I of I.P.C. and is sentenced to suffer R.I. for 10 years. The accused is in jail from 21-11-1995 till today. The said period shall be adjusted towards the substantive sentence and he would be given benefit of set of. Appeal partly allowed. -----