JUDGMENT - BRAHME P.S., J.: - Heard the learned Counsel for the parties. Perused the record. 2. These two appeals arise out of the judgment and order passed on 23-10-1992 in Sessions trial No. 209 of 1991 by the learned Sessions Judge, Akola, whereunder appellant Nandu s/o. Madhukar Gawali/original accused was tried for the offence under section 302 of the Indian Penal Code and was convicted and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1,000/- in default to undergo further rigorous imprisonment for three months for the offence under section 323 of the Indian Penal Code. As such, these two appeals are heard and disposed of by this common judgment. 3. Criminal Appeal No. 413 of 1992 is preferred by the original accused Nandu challenging the order of conviction and sentence for the offence under section 323 of the Indian Penal Code, while Criminal Appeal No. 40 of 1993 is preferred by the State challenging acquittal of accused Nandu for the offence under section 302 of the Indian Penal Code. 4. The incident which gave rise to this prosecution against appellant Nandu/Original accused took place on 4-8-1991, at about 8.00 p.m. at village Rohana, Tq. and Dist. Akola. The appellant/accused stood the trial for the offence punishable under section 302 of the Indian Penal Code for having committed murder of victim Vinayak s/o. Ananda Wagh. Deceased Vinayak had four brothers namely Waman s/o. Ananda Wagh (P.W. 1), Najuk husband of witness Sushila (P.W. 3), Govinda and Uttam. Victim Vinayak used to supply water of the river Purna to almost all the villagers by carrying it on his shoulders with the help of an instrument known as "Kawad" at the rate of Rs. 1.50 ps. or Rs. 2/- per Kawad. He used to collect the charges from some customers at the week end on weekly Bazaar day of Dahihanda. As he had supplied water to accused, at the time of incident, he had gone to the place of occurrence for demanding money that was due from him. It is admitted that the accused, along with some villagers including Ashok s/o. Puran Rane (P.W. 4), Bapurao Sirshat, Jamnu Tiwari, Shrikrishna Ghuse and Pandurang Sirsat were playing the game of Cards under the light of electric pole. It is admitted that the accused, along with some villagers including Ashok s/o. Puran Rane (P.W. 4), Bapurao Sirshat, Jamnu Tiwari, Shrikrishna Ghuse and Pandurang Sirsat were playing the game of Cards under the light of electric pole. When Vinayak demanded his dues in respect of supply of water from accused, he told Vinayak that he had no money at that time and that he would state the same on the next day. However, Vinayak insisted for immediate payment as he was badly in need of money to purchase vegetable oil for cooking curry. On such insistence for money, the accused slapped Vinayak who fell down on the thatched wall of the house of witness Sushila and sustained injury to his lip. Vinayak then got up and started abusing the accused in vile terms saying that when he himself owed the amount why he was beating him. It is alleged that when such abuses were heard by the deceased, the accused got up and he again felled Vinayak on the ground and started assaulting him with kicks and fists blows on his chest and abdomen. Vinayak became unconscious. Witness Waman and Sushila tried to go for rescue of Vinayak, but accused threatened them and asked them to go away. However, one Ajamsha was successful in persuading the accused to go to his house. Waman went to his brother Uttam and narrated him the incident and Uttam brought Dr. P.K. Sirshat on the spot Dr. Shirsat examined Vinayak and declared him dead. 5. Witness Waman and some other villagers proceeded on foot and reached Dahihanda Police Station and Waman lodged complaint (Exh. 9), on the basis of which Crime No. 72 of 1991 against the accused under section 302 of the Indian Penal Code was registered. Immediately P.S.I. Bhimrao s/o Akaramji Ghurde (P.W. 5) with his party visited the spot of occurrence and arrested the accused. He drew up the inquest panchanama and spot panchanama in the morning and sent the dead body to the Civil Hospital, Akola for autopsy. Dr. Imranali Mardanali Khan (P.W. 2), who was the then Medical Officer in the Civil Hospital, carried out autopsy on the dead body of Vinayak and prepared post-mortem note (Exh. 17). In Col. No. 17 of the post-mortem Note, he found following external injuries. 1) Abrasion lower lip with clotted blood ½ cm. x ½ cm. Dr. Imranali Mardanali Khan (P.W. 2), who was the then Medical Officer in the Civil Hospital, carried out autopsy on the dead body of Vinayak and prepared post-mortem note (Exh. 17). In Col. No. 17 of the post-mortem Note, he found following external injuries. 1) Abrasion lower lip with clotted blood ½ cm. x ½ cm. 2) Abrasion on left shoulder, superior aspect 1 "x 1" 3) On palpation fracture detected at right 7th rib The injuries were found to be ante mortem. In the internal examination, in the Thorax region, he noticed fracture of 7th rib right side with evidence of bleeding. On examination of abdomen in peritoneal cavity he noticed four litres of blood. On examination of liver, he noticed in the right lobe of the liver on superior and lateral aspect there was a laceration of the size 2 "x ½ deep. In his opinion, the probable cause of death was haemorrhagic shock due to bleeding due to injury to the right lobe of liver. He opined that the external injuries with internal damage found on the dead body were possible by assault by kicks and fists blows. The external injuries noticed on the dead body were not sufficient in the ordinary course of nature to cause death. However, the fracture of 7th rib causing laceration to liver and haemorrhage was sufficient in the ordinary course of nature to cause death. 6. The investigating Officer recorded the statements of witnesses Ashok Rane, Sushila, Ramkrishna Lad and others. The viscera and clothes collected form the dead body after autopsy were seized. The viscera was forwarded to the Chemical Analyser, Nagpur and upon receipt of the Chemical Analyser's report and post-mortem report and after completing investigation P.S.I. Ghurde submitted the charge-sheet against the accused before the Judicial Magistrate, First Class, Akot and the learned Magistrate committed the case to the Court of sessions for trial of the accused. 7. The accused pleaded not guilty to the charge (Exh. 4) and his defence was that he had told deceased Vinayak that he had no money at that time, but then Vinayak, who was in drunken condition, abused him with reference to his mother and sister. He further contended that Vinayak himself owed some amount to him which he demanded and hence, he refused to pay any amount to Vinayak. 4) and his defence was that he had told deceased Vinayak that he had no money at that time, but then Vinayak, who was in drunken condition, abused him with reference to his mother and sister. He further contended that Vinayak himself owed some amount to him which he demanded and hence, he refused to pay any amount to Vinayak. He (the appellant) contended that Vinayak not only abused him but he kicked him and when he got up, Vinayak started running away and due to influence of drunk, he fell down at a distance of 25 ft. with his face downward and sustained the injuries and died. 8. At the trial, prosecution examined complainant Waman s/o. Ananda Wagh (P.W. 1), Dr. Imranali s/o. Mardanali Khan, Sushila s/o. Najuk Wagh (P.W. 3), Ashok s/o. Puran Rane (P.W. 4) and P.S.I. Bhimrao s/o Akaramji Ghurde. It is not disputed that deceased as well as accused, hail from village Rohana and that the accused and some other villagers including witness Ashok Rane were playing the game of cards beneath the electric pole near the house of witness Sushila and that Vinayak had come there and had demanded dues from the accused and that the accused had refused to pay the dues. The accused admitted the above facts in his statement under section 313 of the Code of Criminal Procedure. However, he denied that he had slapped or assaulted Vinayak with kicks and fists blows on his chest and abdomen. It is not challenged that immediately after altercation between accused and deceased Vinayak the later died on the spot with no material external injuries on his person. The trial Court, considering the medical evidence about which reference was made in the earlier part of the judgment, found that the same shows the possibility and probability of both the prosecution theory as well as defence theory being truthful. Therefore, evidence of eye-witnesses was considered by the trial Court. The trial Court, considering the medical evidence about which reference was made in the earlier part of the judgment, found that the same shows the possibility and probability of both the prosecution theory as well as defence theory being truthful. Therefore, evidence of eye-witnesses was considered by the trial Court. In that, witness Waman (P.W. 1) in his evidence has stated that when he had gone to the shop of Ramkrushna Lad to purchase some grocery, he found the accused and other villagers beneath the Tube light playing cards and at that time, Vinayak came and demanded money from the accused and the accused then said that he had no money at that time and further threatened Vinayak saying that whether he did not know the influence of Shivsena. It is further stated by witness Waman that when accused refused to pay money, Vinayak abused him saying that he would write off the dues and would not give water to the accused. Waman then deposed that accused slapped Vinayak, as a result of which Vinayak fell down on the thatched wall of witness Sushila and then Vinayak got up and abused the accused. It is further in his evidence that accused pushed Vinayak on the ground and started giving him kicks and fists blows on his chest and other parts of the body. Witness Waman then went to inform his brother Uttam who, in turn, went to Dr. Sirshat and Dr. Sirshat, after coming to the place with them, on examining Vinayak, declared him dead. 9. Witness Waman went to the Police Station and lodged report (Exh. 9), on the basis of which the offence was registered. That immediate report lodged by Waman corroborated the testimony of Waman on all material points including the assault by accused with kicks and fists blows on the chest. That is why, the version of witness Waman has been accepted by the trial Court. 10. The trial Court considered the evidence of witness Sushila (P.W. 3), who stated in her evidence that while the accused and other villagers were playing cards, Vinayak demanded his dues from the accused. But the accused told that he had no money and that he would pay on the next day. She further deposed that Vinayak insisted for money and then accused slapped him and that Vinayak fell down on the thatched wall of her house. But the accused told that he had no money and that he would pay on the next day. She further deposed that Vinayak insisted for money and then accused slapped him and that Vinayak fell down on the thatched wall of her house. She further deposed that Vinayak got up and abused the accused saying as to why he was not paying his dues and was beating him. The accused then started assaulting Vinayak by pushing him on the ground and also giving kicks and fists blows on his chest and abdomen. Witness Sushila immediately went to the house of Police Patil to inform him about the assault on Vinayak. Presence of witness Sushila at the place of occurrence was found to be natural as her house, where she is residing is just adjacent to the place of occurrence. The trial Court, therefore, found her evidence acceptable and believable which lends assurance to the version of complainant Waman. 11. The trial Court found that the version of complainant Waman is further corroborated by independent witness Ashok Rane whose presence is disclosed in the F.I.R. and which has not been challenged by the accused. Ashok Rane was stated that the accused and other villagers were playing cards when Vinayak came there and demanded dues from the accused saying that there was urgent need of money to purchase vegetable oil for cooking and that the accused stated that he had no money and that he would pay the same on the next day. He further stated that Vinayak, however, insisted for immediate payment and then accused slapped him and Vinayak fell down on the thatched wall. He stated that Vinayak got up and asked accused as to why he was beating him when he owed money to him and Vinayak also abused the accused. Witness deposed that, on hurling such abuses by Vinayak, the accused felled him on the ground and started to assault him with kicks and fists blows. 12. Thus, the trial Court has rightly found that the evidence of complainant Waman has been corroborated by independent witness Ashok Rane. Witness deposed that, on hurling such abuses by Vinayak, the accused felled him on the ground and started to assault him with kicks and fists blows. 12. Thus, the trial Court has rightly found that the evidence of complainant Waman has been corroborated by independent witness Ashok Rane. Taking into consideration the evidence of the witness Waman, Sushila and Ashok Rane, the trial Court came to the conclusion that the accused has assaulted Vinayak with fists and kicks blows and as a result of that assault, victim Vinayak sustained external injuries as well as internal damage to his liver as noted by the Medical Officer, which was the cause of death of the victim. As against that, the trial Court found that the defence theory, as contended by the accused in his statement, is neither established nor it is found to be probable and true in the light of the eye-witness account of witnesses Waman, Sushila and Ashok Rane. The trial Court found that the contradictions and omissions in the evidence of prosecution witnesses, as pointed out by the learned Counsel for the defence, were insignificant and as such, the credibility of these witnesses is no way impaired. The trial Court found that simply because the deceased was in drunken condition the defence story that the deceased had started running away cannot be accepted. The trial Court observed that it really he was running away and had fallen down on rough substance, then there would have been injuries on his other parts of the body including legs and abdomen etc. Having regard to all the facts and circumstances, the trial Court accepted the prosecution case that the accused had given blows of kicks and fists on the abdomen and chest of the deceased causing fracture and consequent laceration of the liver and haemorrhage. 13. However, in this case, the motive was absolutely absent. The incident had occurred on account of sudden altercation and exchange of abuses and therefore, the accused who had no premeditation nor was he armed, had no requisite intention to commit the murder of deceased Vinayak. He had no intention to cause such bodily injury, which was eminently dangerous and in all probabilities, which was likely to cause death. The trial Court observed that requisite intention or knowledge to commit murder cannot be attributed to the accused. He had no intention to cause such bodily injury, which was eminently dangerous and in all probabilities, which was likely to cause death. The trial Court observed that requisite intention or knowledge to commit murder cannot be attributed to the accused. Hence, the act of the accused would not be covered by section 300 of the Indian Penal Code and he cannot be held guilty for the offence of murder though assault made by him causing death of the deceased is proved. The trial Court rejected the contention of the Additional Public Prosecutor that the case would be covered by section 304-II of the Indian Penal Code as knowledge could be attributed to the accused that his act was likely to cause death. The trial Court observed that the accused simply wanted to assault the deceased. There was no material external injury on the dead body of deceased. The accused could not have imagined that the fists blows and kicks blows dealt by him were likely to cause internal damage including fracture of rib. In a sudden altercation and exchange of abuses, the accused became little bit provoked due to filthy abuses buried by the deceased with reference to his mother and sister and therefore he decided to assault the deceased with kicks and fists blows without knowing that his act was likely to cause death of the deceased instantaneously. The trial Court, therefore, observed that the case would not be covered by section 304-I or II of the Indian Penal Code. The trial Court, therefore, found that the case would fall under section 323 of the Indian Penal Code. The trial Court, in keeping with this finding, convicted the appellant for the offence under section 323 of the Indian Penal Code and awarded sentence as stated in the earlier part of the judgment. Hence, this appeal. 13-A. The learned Counsel for the appellant/accused Mr. Tathod restricted his submission to challenge to the sentence awarded by the trial Court. He submitted that since the appellant was found guilty of the offence under section 323 of the Indian Penal Code, in the facts and circumstances of the case, awarding of substantive sentence was not called for. He submitted that record of the appellant of the past was unblemished. He submitted that since the appellant was found guilty of the offence under section 323 of the Indian Penal Code, in the facts and circumstances of the case, awarding of substantive sentence was not called for. He submitted that record of the appellant of the past was unblemished. So, considering the nature of offence proved to have been committed by the appellant instead of awarding substantive sentence, he should be given benefit under the Probation of Offenders Act and should be released on probation on furnishing requisite bond. 14. We have given our considerable thoughts to the submission of the learned Counsel for the appellant. The trial Court has awarded substantive sentence of rigorous imprisonment of one year besides the sentence of fine of Rs. 1,000/-, it is no doubt true that we could hear the appeal of the appellant against his conviction after period of eleven years. That shows that the sword of conviction and sentence was on his head for the period of almost 11 years by now. The incident of assault on the victim by the accused has taken place in very peculiar circumstances and without there being any provocation on the part of the victim. But, at the same time, the accused was found unarmed. The victim came to be assaulted with kicks and fists blows by the accused. The appellant is now about 44 years of age. Therefore, having regard to the facts and circumstances of the case, when accused was found guilty of the offence under section 323 of the Indian Penal Code, in our opinion, the substantive sentence awarded by the trial Court was not called for. But, at the same time, we do not agree with the submission of the learned Counsel for the appellant that the appellant should be released on probation of good conduct since, as a consequence of the assault by the accused, victim Vinayak died and lost his life. It is borne out from the record that the appellant was in detention during the trial for fifteen days. Therefore, in the circumstances which we have highlighted above, the sentence already undergone by the appellant would meet the ends of justice. We also maintain the sentence of fine awarded by the trial Court. The learned Counsel for the appellant has submitted that the appellant has paid fine. Therefore, in the circumstances which we have highlighted above, the sentence already undergone by the appellant would meet the ends of justice. We also maintain the sentence of fine awarded by the trial Court. The learned Counsel for the appellant has submitted that the appellant has paid fine. So, with this modification in sentence, the appeal preferred by the appellant is party allowed. 15. On assessment of the evidence independently by us, we have confirmed the finding of the trial Court holding the appellant guilty for the offence under section 323 of the Indian Penal Code. Therefore, the appeal preferred by the State challenging the acquittal of the appellant of the offence under section 302 of the Indian Penal Code merits no consideration at all. As such, the appeal deserves to be dismissed. Hence, the order. ORDER Criminal Appeal No. 413 of 1992 is partly allowed. The conviction of the appellant-accused for the offence punishable under section 323 of the Indian Penal Code, as also sentence of payment of fine of Rs. 1,000/-, as awarded by the trial Court, is confirmed. However, the substantive sentence of rigorous imprisonment for one year awarded by the trial Court is modified and the appellant is sentenced to imprisonment for the period already undergone namely 15 days, as submitted by the learned Counsel for the parties. Since the appellant has paid fine and he was under detention for 15 days, his bail bond shall stand cancelled. Criminal Appeal No. 40 of 1993 is dismissed. Appeal dismissed. -----