JUDGMENT - BRAHME P.S., J.:---The appellant, Ramchandra Sitaram Dharmik was tried for murder of Ramrao Borkute under section 302 of the Indian Penal Code in Sessions Case No. 233 of 1998. The learned III Additional Sessions Judge, Nagpur, by judgment and order dated 18-11-1998, convicted the appellant for offence under section 302 of the Indian Penal Code and sentenced him to imprisonment for life. This order of conviction and sentence is under challenge in this appeal. 2.The incident which gave rise to this prosecution against the appellant took place on 25-12-1997 at the shop of victim Ramrao Borkute at about 1800 hours at Bajaj Nagar which comes under Police Station, Ambazari, Nagpur City. The complainant Ramrao Borkute, since deceased, was working in his cobbler shop at Bajaj Nagar. The appellant was keeping his bed in the shop of complainant. However, deceased did not like the same and, therefore, he asked the appellant not to keep his bed in his shop and there used to be quarrel between them on that issue some days prior to the occurrence. It is the prosecution case that on the day of occurrence, it was Ramrao Borkute asked the appellant not to keep his bed in the shop for which the appellant was insisting. It appears that as the deceased asked the appellant not to keep his bed in the shop, the appellant felt very bad and he lifted a stone which was used by the deceased in his shop in connection with his business and assaulted the deceased on his head, right ear, nose and forehead. Due to that assault, deceased received multiple injuries on his head. The appellant ran away from the spot. The injured was admitted to Taori Hospital, where he was examined by Dr. Girdhar Taori (P.W. 10). He noted multiple injuries on the person of deceased as described in case summary (Exh. 26). He also advised to remove the deceased to Medical College Hospital. When he was shifted to Medical College Hospital, his statement was recorded by police vide Exh. 30 and on the basis of that, offence was registered under section 307 of the Indian Penal Code. However, injured Ramrao died in the hospital and hence, the offence was converted under section 302 of the Indian Penal Code. The appellant was arrested. When he was shifted to Medical College Hospital, his statement was recorded by police vide Exh. 30 and on the basis of that, offence was registered under section 307 of the Indian Penal Code. However, injured Ramrao died in the hospital and hence, the offence was converted under section 302 of the Indian Penal Code. The appellant was arrested. The investigation was carried out by P.S.I. Jaiulabettin Sheikh (P.W. 14) who was then attached to Police Station, Ambazari. He prepared inqest panchanama (Exh. 15) and the dead body was sent for post-mortem examination. Dr. Vinod Agrawal (P.W. 13) conducted autopsy on the dead body of victim Ramrao and prepared postmortem notes (Exh. 34). In his opinion, the cause of death was due to Intracranial Haemorrhage due to head injury. Further investigation in the matter was carried out by Vasant Sayyam (P.W. 15) who was then Police Inspector attached to Police Station, Ambazari. He prepared spot panchanama (Exh. 9). The articles which were found on the spot were seized under seizure memo (Exh. 10). The seized articles include two stones on which blood stains were found. The seized articles were sent to Chemical Analyser. As per the report (Exh. 39) of Chemical Analyser, blood detected on the stone was human blood. However, blood group of the blood detected cannot be determined as the results were inconclusive. As per the report (Exh. 39), blood detected on the clothes of the deceased was of group O. As per the report (Exh. 39) of the Chemical Analyser, human blood is detected in nail clippings of the appellant. However, blood group of the blood detected in the nail clippings of the accused could not be determined. After completing investigation, charge-sheet was filed in the Court of Chief Judicial Magistrate who, in turn, committed the case to the Court of Session. 3.Before the Sessions Court, the appellant pleaded not guilty to the charge and also claimed to be tried. His defence is that of total denial. At the trial, the prosecution examined in all 15 witnesses including Sakharam Sahare (P.W. 2), who claimed to be an eye-witness to the incident, Punjaji Dharne (P.W. 1), who was panch witness and in whose presence spot panchanama (Exh. 9) and seizure memo (Exh. His defence is that of total denial. At the trial, the prosecution examined in all 15 witnesses including Sakharam Sahare (P.W. 2), who claimed to be an eye-witness to the incident, Punjaji Dharne (P.W. 1), who was panch witness and in whose presence spot panchanama (Exh. 9) and seizure memo (Exh. 10) came to be prepared, Ashok Lohage (P.W. 3) who also claimed to be an eye-witness to the incident, Babarao Dhotre (P.W. 4), a panch witness in whose presence an inquest panchanama (Exh. 15) was prepared, Rajesh Dharmik (P.W. 5), who is son of the appellant and did not support the prosecution case though the prosecution claims him to be an eye-witness to the incident, Milind Dhotre (P.W. 6), a witness who claims that the victim Ramrao while in the hospital told him that the appellant assaulted him by means of stone as he (Victim Ramrao) did not allow the appellant to keep his bed in his shop, Babulal Matale (P.W. 8), who acted as panch when the clothes of the appellant came to be seized under panchanama (Exh. 21), Dr. Girdhar Taori (P.W. 10), who first examined the victim Ramrao and referred him to Medical College and Hospital, Bholaram Shende (P.W. 11), Head Constable was attached to Police Station, Ambazai, and who recorded the statement (Exh. 30 of the victim in the hospital, Dr. Haribhau Kupate (P.W. 12), who examined the victim and certified that he was conscious when his statement was recorded, Dr. Vinod Agrawal (P.W. 13), who conducted autopsy on the dead body of victim Ramrao and P.I. Vasant Sayyam (P.W. 15), who carried further investigation in the matter. The learned Additional Sessions Judge, accepting the evidence of the eye-witnesses coupled with the statement of the deceased (Exh. 30) and medical evidence and the incriminating circumstances as to finding of human blood as per the report of Chemical Analyzer (Exh. 39), came to the conclusion that the victim Ramrao died homicidal death and that it was on account of assault by the appellant with stone causing multiple severe injuries. In keeping with these findings, the learned Additional Sessions Judge convicted the appellant for offence under section 302 of the Indian Penal Code and awarded him to sentence for imprisonment of life. 4.We have heard Shri M.R. Daga, the learned Counsel for the appellant and Shri A.S. Sonare, learned Additional Public Prosecutor for the respondent/State. In keeping with these findings, the learned Additional Sessions Judge convicted the appellant for offence under section 302 of the Indian Penal Code and awarded him to sentence for imprisonment of life. 4.We have heard Shri M.R. Daga, the learned Counsel for the appellant and Shri A.S. Sonare, learned Additional Public Prosecutor for the respondent/State. It is not disputed that the victim in the incident that took place at his shop sustained multiple injuries. It is also established on the evidence on record that the deceased died homicidal death due to multiple injuries sustained by him. The evidence of Dr. Vinod Agrawal, who conducted autopsy on the dead body clinchingly goes to show that the deceased had sustained very severe injuries on his head and in his post-mortem report (Exh. 34), he has given candid opinion as to cause of death as intra cranial haemorrhage due to head injury. That is not disputed by the defence. Though a suggestion was given to the doctor that the injuries which he mentioned in the post-mortem report were possible due to fall on hard object, the doctor has stoutly denied the suggestion. The doctor has stoutly denied the suggestion. The doctor has stated in his evidence that the injuries are possible due to stones i.e. article Nos. 1 and 2. It is again pertinent to note that corresponding to external injuries there was internal damage as there was hematoma all over the scalp and also sub dural hematoma all over the brain. Dr. Vinod Agrawal (P.W. 13), in his evidence, has also stated that he has mentioned in Column No. 22 of post-mortem report that the internal injuries were sufficient in ordinary course of nature to cause death. This evidence has gone unchallenged. Therefore, the trial Court was right in its findings that the victim Ramrao died homicidal death on account of multiple injuries sustained by him. 5.In order to prove that the appellant assaulted the victim with stone and inflicted multiple injuries on his head, the prosecution mainly relied on eye-witness account of witnesses Sakharam Sahare (P.W. 2), Ashok Lohage (P.W. 3) and Prabhakar Morande. In addition to that, the prosecution also placed reliance on the report (Exh. 30) by witness Bholaram Shende (P.W. 11), who recorded the statement of the deceased and disclosure by the deceased to witness Milind Dhotre (P.W. 6) that he was assaulted by the appellant by stone. In addition to that, the prosecution also placed reliance on the report (Exh. 30) by witness Bholaram Shende (P.W. 11), who recorded the statement of the deceased and disclosure by the deceased to witness Milind Dhotre (P.W. 6) that he was assaulted by the appellant by stone. We have gone through the evidence of witnesses with the assistance of the learned Counsel for the appellant. Witness Sakharam (P.W. 2) was knowing the accused and the deceased. He has stated that the deceased was handicapped. He used to come to his shop by rickshaw. He was unable to walk. The rickshawala used to make him to sit in auto rickshaw and the rickshawala used to life him from the rickshaw and used to make him sit in the shop. In his evidence, he has stated that the appellant used to sleep in the verandah of the shop of deceased Ramrao and he also used to keep his bed in the shop of Ramrao. Deceased had asked the appellant not to keep his bed in the shop and on that ground, there was quarrel between them on three to four occasions. As regards the incident that took place the witness Sakharam stated in his evidence that he saw the accused/appellant assaulting Ramrao by means of stone on his head. The said stone was from the shop of Ramrao, who used to keep that stone in the shop for nailing footwears. He has also stated that Ramrao was taken to Taori Hospital. This witness was subjected to cross-examination by the defence. But, his evidence remained undisturbed on material particulars. The presence of this witness at the place of occurrence was natural and whatever he has deposed before the Court is corroborated by other evidence on record. 6.The next eye-witness is Ashok Lohage (P.W. 3) who claimed that he heard shouts from the shop of Ramrao Borkute and he had seen the appellant Ramchandra beating Ramrao. He then went to the son of the appellant namely Raju and told him that his father was beating Ramrao. Though this witness was declared hostile by the prosecution, whatever his evidence before the Court recorded in examination-in-chief remained undisputed and it lends assurance to the evidence of witness Sakharam. He then went to the son of the appellant namely Raju and told him that his father was beating Ramrao. Though this witness was declared hostile by the prosecution, whatever his evidence before the Court recorded in examination-in-chief remained undisputed and it lends assurance to the evidence of witness Sakharam. 7.The witness Prabhakar Morande (P.W. 7) stated in his evidence before the Court that the incident took place an year ago at about 8 to 8.30 p.m. when he was working in his shop. One Ashok came on his shop and told that the appellant was beating Langdya Ramrao. The appellant was also referred by name Dhotrya Budha. He went to the shop of Ramrao and he found that Dhotrya Budha was beating Ramrao by something in his both hands. He had gone to the pan thela of son of the accused to call him. The son of the accused pulled the accused by holding his hands. This witness has no doubt described incident in a cryptic manner, but she did state the facts that the appellant was assaulting the deceased at his shop. Though this witness was cross-examined by the defence, nothing has been brought to discard his testimony. There is no reason to discard his evidence. 8.The prosecution has also examined witness Milind Dhotre (P.W. 6). According to him, witness Prabhakar Morande came to his house and told that his brother-in-law has been beaten. It is a matter of record that deceased Ramrao Borkute was brother-in-law of witness Milind Dhotre. He told Milind that the father of Raju has assaulted Ramrao by means of stone. This witness has further stated in his evidence that he had gone to the hospital of Dr. Taori where Ramrao was admitted. This witness also accompanied Ramrao when he was shifted to Medical College hospital. He has stated that while Ramrao was in the hospital of Dr. Taori, he asked him as to how the incident has taken place and that time Ramrao told him that the father of Raja (Proprietor of Prince Pan Shop) beat him by means of stone. When he made further enquiry as to why he was beaten, he told that he was beaten because he did not allow Ramrao to keep his bed in his shop. This witness Milind was cross-examined at length by the defence. When he made further enquiry as to why he was beaten, he told that he was beaten because he did not allow Ramrao to keep his bed in his shop. This witness Milind was cross-examined at length by the defence. But, nothing has been elicited in his cross-examination so as to disbelieve his testimony. His evidence is of assistance to the prosecution in two ways. In the first place, he claimed that he came to know from witness Prabhakar that deceased Ramrao was assaulted by the appellant by stone. This lends assurance to what witness Prabhakar has claimed before the Court. Secondly, his claim that the deceased made disclosure to him that he was assaulted by Ramchandra by stone as he did not allow the latter to keep his bed in his shop, lends assurance to the prosecution case that the deceased was assaulted by appellant Ramchandra. There is absolutely no reason for witness Prabhakar as well as Milind to give false evidence to falsely implicate the appellant. 9.In addition to eye-witness account, in this case, in our view declaration by the victim to Police Officer Bholaram Shende which is reflected in the statement (Exh. 30) is most crucial evidence showing complicity of the appellant in commission of assault on the victim. It is not disputed that on the basis of this statement (Exh. 30) which is taken as a report, offence has been registered. Witness Bholaram Shende, a Police Officer who was attached to Police Station, Ambazari when went to the hospital on receiving message, recorded the statement of victim Ramrao and that too after victim Ramrao was examined by Dr. Kupate (P.W. 12). It is clinchingly stated by Dr. Kupate in his evidence before the Court that the patient Ramrao was conscious when the statement is recorded. He put his endorsement on the said statement. It is brought in his evidence by the defence that the statement of Ramrao was recorded in his presence. It is significant to note that witness Bholaram Shende in his evidence before the Court has stated that the patient was conscious and he recorded his statement as per Exh. 30. There is no reason to discard the evidence of witness Bholaram Shende and Dr. Upate. The report (Exh. 30) is admissible his evidence as dying declaration since after recording the statement the victim died. In the report (Exh. 30. There is no reason to discard the evidence of witness Bholaram Shende and Dr. Upate. The report (Exh. 30) is admissible his evidence as dying declaration since after recording the statement the victim died. In the report (Exh. 30), the victim has stated in clear words that on 25-12-1997, around 6 O clock in the evening Ramchandra Sitaram Dharmik came to his shop and started keeping his bedding and that time he refused him to do so as a result of which he got angry and by giving abuses he lifted the stone which was lying nearby and delivered blows with the stone on his head, right ear, nose and forehead and because of that he received grievous injury. He also stated that he was carried to Taori Hospital and thereafter he was referred to Medical College and Hospital. Whatever has been stated in the report (Exh. 30) which the victim has given, contains the grain of truth and, therefore, there is a reason to accept the same. The defence has brought no material on record so as to defend the statement (Exh. 30). Therefore, we have no hesitation in placing implicit reliance on the report (Exh. 30). Accepting the contents of report (Exh. 30), it is clinchingly established that the appellant Ramchandra was the persons who assaulted the victim at the time and place as alleged by the prosecution. 10.There is substantial evidence in this case which further lends assurance to the evidence of eye-witnesses and the statement of the victim in the report (Exh. 30) as also oral declaration made by the deceased to witness Milind showing the complicity of the appellant in commission of the crime. We have already referred to the fact that the clothes of the accused were seized and as per the report (Exh. 39) of Chemical Analyzer, blood detected on the clothes of the appellant was of Group O. The blood group of the blood of accused was of group A, while the blood group of deceased was of group O. The appellant has not given any explanation as to finding of blood on his clothes and that too of blood group O, when blood group of his blood was A. This is, therefore, an incriminating circumstances. As per the report (Exh. As per the report (Exh. 39) of Chemical Analyser, human blood is detected on the stone, though blood group of blood detected thereon cannot be determined as the reasons were inconclusive, but then finding of human blood on a stone which was seized from the shop, in the context of deceased, found lying in the pool of blood after assault in the shop in certainly an incriminating circumstance. It is again very significant to note that the nail clippings of the accused were sent to Chemical Analyzer for analysis and as per the report (Exh. 39) of Chemical Analyser, human blood is detected in the nail clippings of the accused. There is no explanation on the part of the accused as to finding of human blood in his nail clippings. When we see the evidence on record, it is clinchingly established that the accused was the assailant and he assaulted the victim with the stone, finding of human blood in his nail clippings is an incriminating circumstance in all probabilities, showing nexus of the appellant with commission of the assault on the victim. After going through the evidence on record, direct as well as circumstantial, it is established that the appellant assaulted the victim with stone and he is accountable for homicidal death of the deceased. 11.The learned Counsel Shri M.R. Daga vehemently submitted that having regard to the facts and circumstances of the case, the offence under section 302 is not made out. He contended that the appellant was almost seventy years old at the time when the incident took place. The assault was with the stone, which is not a weapon of assault. The incident has occurred and also preceded by quarrel between victim and appellant on trifle matter. In such circumstances, the learned Counsel for the appellant has submitted that it cannot be inferred even that the appellant had intention to cause death of the victim. He, therefore, submitted that the offence can be scaled out to that under section 304 Part II of the Indian Penal Code. The learned Counsel placed reliance on the decision of our High Court in (Shantaram Dattaya Waghmare v. State of Maharashtra)1, reported in 2000 All.M.R.(Cri.) 925, wherein it is held that where the accused picked up a stone weighing one kg. The learned Counsel placed reliance on the decision of our High Court in (Shantaram Dattaya Waghmare v. State of Maharashtra)1, reported in 2000 All.M.R.(Cri.) 925, wherein it is held that where the accused picked up a stone weighing one kg. and hurled it at the deceaseds head, it can be said that he has committed the act with the knowledge that he was likely to cause the death of the deceased in terms of Clause Thirdly of section 299 I.P.C. the breach of which, is punishable under section 304 Part II I.P.C. It is very difficult to accede to the submission of the learned Counsel for the appellant having regards to the facts of the case before hand. 12.In the case before hand, the appellant has given successive stone blows to the deceased, resulting into multiple severe injuries on head with internal damage as noted by the Medical Officer. The stone with the assault was made is weighing about two kgs. It is admitted that though it is not disputed that the victim was handicapped and it was to such an extent that he could not walk by his legs and that he was required to be brought to the shop by lifting him and at the same time he was required to be placed in the auto rickshaw by lifting. The Medical Officer has also clarified that the injuries were sufficient in ordinary course of nature to cause death. It is no doubt true that the incident of assault was preceded by some sort of quarrel between the deceased and the appellant but, by no stretch of imagination it can be said that there was provocation by the deceased to the appellant to make assault on the deceased. It is also matter of record that on earlier occasions also, there was quarrel when the deceased told the appellant not to keep his bed in his shop. Therefore, having regard to all these circumstances attending the case, we do not think that the appellant did not intend to cause death of the deceased. In the case relied upon by the learned Counsel for the appellant the assault by hurling stone at the deceased. In the case before hand, actually stone blows were given by the appellant. Therefore, having regard to all these circumstances attending the case, we do not think that the appellant did not intend to cause death of the deceased. In the case relied upon by the learned Counsel for the appellant the assault by hurling stone at the deceased. In the case before hand, actually stone blows were given by the appellant. Therefore, in the case relied upon having regard to the fact that the stone was hurled at the victim and thereby the victim came to be injured, the Court has held that the accused has committed the act with the knowledge that he was likely to cause death of the deceased. 13.In the result, the trial Court has rightly found the appellant guilty for the offence under section 302 of the Indian Penal Code, we do not find any error committed by the trial Court in convicting the appellant for offence under section 302 of the Indian Penal Code and also sentencing him to imprisonment for life. There is no reason to interfere with the judgment and order passed by the trial Court. The appeal merits no consideration. The same is, therefore, dismissed. Appeal dismissed. -----