JUDGMENT - KAKADE P.V., J.:---The appellant has preferred this appeal against the judgment and order dated 23rd March, 2000 passed by the Additional Sessions Judge, Kolhapur in Sessions Case No. 85 of 1999 wherein the appellant was convicted for commission of offence punishable under sections 302 and 309 of the Indian Penal Code and was sentenced to suffer life imprisonment and to pay fine of Rs. 2000/- in default to suffer R.I. for six months on first count and to suffer R.I. for six months on second count. 2.The facts giving rise to the present case, in short, are thus- 3.The appellant accused is from village Sangwade. Witness Sushila happens to his wife. She got married about 10 years prior to the incident. Before marriage they had love affair. During the wedlock she gave birth to son viz. Dadasaheb. She was married to the accused against the wishes of the members of her family, and therefore, they were not on talking terms with them for about two years. About two years prior to the incident the appellant started ill-treating Sushila and therefore, she had gone to her parental home on two occasions. On first time she was taken back by the accused after giving guarantee of two respectable person. However, ill treatment was continued and she again returned to her parental home, but again the appellant accused gave guarantee of employer and she went to reside the accused. However, one month prior to the incident, the accused again started ill treating her and therefore she left his house along with son and took shelter at her parental home. At that time she had sustained fracture injury on her leg and was treated in the hospital at Kolhapur. Thereafter, she was working with her brother Prakash, the complainant, who used to take contracts of digging well. The incident took place on 9-3-1999. Witness Sushila had gone to the field of one Nerlekar near Sangwade. Her nephew Pravin and brother Bhimrao were also accompanying her for the work of digging of well. At about 5.00 p.m. accused also came in that field and asked Sushila about his son and accordingly Sushila sent her sons Dadasaheb towards the accused. After finishing the work of well, Sushila insisted that accused to hand over custody of Dadasaheb to her. At about 5.00 p.m. accused also came in that field and asked Sushila about his son and accordingly Sushila sent her sons Dadasaheb towards the accused. After finishing the work of well, Sushila insisted that accused to hand over custody of Dadasaheb to her. Thereafter Sushila alongwith her brother Prakash and nephew and another brother Bhimrao and one worker started for Sangwade. They were followed by accused along with son Dadasaheb. When, they all had been in the field of one Lakani, accused handed over custody of Dadasaheb to Sushila. Later on brother of Sushila complainant Prakash asked accused not to come on the well and not to ask for custody of child, on which accused snatched away his son from Sushila and went at a distance of 15ft. towards back side. Thereafter he caused Dadasaheb to stand and held him in hand and thereafter gave knife blow on Dadasaheb. When Sushila and her brother Prakash rushed towards him, in the meantime accused gave another blow of knife on Dadasaheb. Thereafter the accused stabbed himself but complainant Prakash snatched away the knife from him. Thereafter Sushila started to go to Sangawade along with her son Dadasaheb. The accused was also followed them in injured condition. The matter was reported to Dy. Sarpanch witness Charudatta Patil, who went to the police Patil and informed the fact to him and then also informed the Karvir Police Station. Thereafter police arrived in the village. The police found that the appellant was lying in the injured condition in front of house of one Sarjerao Kashimbane and son Dadasaheb was also dead and was found with him. Injured accused was immediately shifted to G.P.R. Hospital, Kolhapur. Thereafter complainant Prakashs complaint was recorded by the police an offence under sections 302 and 309 of the Indian Penal Code was registered against the accused. The investigation commenced, in which course the inquest panchnama was made and dead body was sent for post mortem examination. The panchnama of scene of incident was prepared. The knife which was snatched by complainant Prakash from accused along with shirt of complainant Prakash which was stained with blood was also seized under panchnama. Sushilas clothes were also having blood stains and those were seized at that time. The incriminating articles seized in the course of investigation were sent to Chemical Analyser for examination, whose report was received and is part of record. Sushilas clothes were also having blood stains and those were seized at that time. The incriminating articles seized in the course of investigation were sent to Chemical Analyser for examination, whose report was received and is part of record. Statement of several witnesses came to be recorded, including eye-witness to the incident. On completion of the investigation the charge-sheet was sent to the Court of law. The learned Magistrate committed the case to the Court of Sessions. 4.The learned Addl. Sessions Judge framed the charge against the accused under sections 302 and 309 of the Indian Penal Code, to which he pleaded not guilty. The defence of the accused is that of total denial of any criminal liability. The prosecution led its evidence at length based on ocular testimony of three witnesses. On which basis the learned trial Judge came to the conclusion that it was sufficient to bring home the guilt and accordingly passed an order of conviction and consequent sentence in aforesaid manner. Hence the appeal. 6.We heard Mr. Shekhar Ingawale, the learned Counsel for the appellant and Mr. B.R. Patil, A.P.P. for the State at length. We have also perused the entire evidence on record. 7.On perusal of the evidence it is seen that the prosecution case is based on ocular testimony of as many as three witnesses besides, the circumstantial evidence on record. It is not disputed that deceased Dadasaheb, son of witness Sushila and accused suffered homicidal death. The medical evidence on record also supports squarely the position that Dadasaheb was victim of assault committed on him with sharp edged weapon like knife before the Court. Further, the medical evidence along with medical certificate Exh. 28 is sufficient to show that the accused also suffered incised wounds as well as stab wounds at the relevant time which is said to be self inflicted wounds. Complainant Prakash, brother of Sushila and brother-in-law of accused, has narrated the incident giving brief history of the relationship between the accused and Sushila and checkered marriage life of their stating as to how on two previous occasions Sushila had to return her parental home due to short tempered nature of the accused and his habit to assault her. Regarding the incident he had also narrated quite graphically that on 9-3-1999 at about evening time i.e. 5.00 p.m. himself, alongwith his partner went to the site of well of one Nerlekar. Regarding the incident he had also narrated quite graphically that on 9-3-1999 at about evening time i.e. 5.00 p.m. himself, alongwith his partner went to the site of well of one Nerlekar. Accused was near the said site and he saw the accused along with his son Dadasaheb. They finished their work of well and were returning to back to their house. They were, himself, his sister, nephew Pravin and brother Bhimrao returning to home, when they reached near field of Lakani Mala accused reached there along with his son Dadasaheb and handed over custody of his son to sister Sushila. Thereafter accused snatched son Dadasaheb and he went for some distance and thereafter he took out the knife and stabbed his son Dadasaheb with the knife on his stomach. Complainant himself and sister Sushila rushed towards the accused. Sushila took her son Dadasaheb from accused. Thereafter accused himself fell down and stabbed himself with the knife on his stomach. The complainant snatched away the knife from the hands of the accused and thereafter Dadasaheb was being taken to Sangawade for the purpose of taking him to hospital at that time accused again came behind them. He slapped his sister Sushila and snatched Dadasaheb from Sushila. Due to the knife blow given by accused to Dadasaheb he had sustained bleeding injury on his stomach. After reaching village Sangawade they contacted Dy. Sarpanch Charuduttal Patil and disclosed the incident to him. Accused was coming towards house with injured Dadasaheb, carrying Dadasaheb on his shoulder. Dy. Sarpanch informed the police by phone. Police came on the scene by which time Dadasaheb was dead and accused was lying in injured condition. The complainant handed over knife which was snatched from the accused to the police, which was seized under panchnama after complaint of the complainant was recorded. 8.This version, as can be seen from the record, is not at all shaken in the cross-examination. Moreover, the F.I.R. which was lodged immediately with the police after the incident corroborates the version given by the complainant on all material points. The offence came to be registered on the basis of the F.I.R. at 9.20 p.m. on that very day and therefore, it is obvious that there was delay in filing the F.I.R. The testimony of P.W. 3 Sushila and that of P.W. 5 Popat are in corroboration to the evidence of the complaint. The offence came to be registered on the basis of the F.I.R. at 9.20 p.m. on that very day and therefore, it is obvious that there was delay in filing the F.I.R. The testimony of P.W. 3 Sushila and that of P.W. 5 Popat are in corroboration to the evidence of the complaint. P.W. 5 who is an independent witness also corroborates the testimony of complainant and Sushila regarding the over act of the accused, who has stated that it was the accused who stabbed repeatedly on Dadasahebs stomach and thereafter stabbed himself. It was submitted on behalf of the appellant that the complainant as well as Sushila are interested persons, because complainant is brother of Sushila and Sushila had animosity against the accused and therefore, their testimonies cannot be relied upon. However, on scrutiny of their evidence it is clearly seen that death of Dadasaheb at the hands of any stranger has to be ruled out totally because it is the case of the prosecution duly proved by the evidence that the accused at that very time stabbed himself and got injured. Therefore, stabbing of Dadasaheb and stabbing of himself by the accused are the facts duly proved on record. The motive behind the act of the accused is obvious that is dispute regarding the custody of son Dadasaheb which the accused wanted to have from his wife Sushila, who was refusing to give custody. The accused obviously could not forcibly take custody of his son due to presence of Sushilas brothers, and therefore, being desperate stabbed his son and then repentant father stabbed himself when realised as to what he had done. 9.This entire evidence is again supported by medical evidence on record. It is also clear that the weapon of offence i.e. knife before the Court was the same with which the accused had killed Dadasaheb and then stabbed himself. Under the circumstances, the evidence on record is more than enough to establish that the accused killed Dadasaheb at the relevant time and place and after repenting regarding his overt act also tried to kill himself by committing suicide. 10.Mr. Under the circumstances, the evidence on record is more than enough to establish that the accused killed Dadasaheb at the relevant time and place and after repenting regarding his overt act also tried to kill himself by committing suicide. 10.Mr. Ingawale, the learned Counsel further submitted that the evidence on record was sufficient to show that the overt act of accused was apparently committed in a hit of anger and had no intention to kill Dadasaheb, his own son, and when he found that what he has done in hit of anger he also tried to kill himself and therefore it was submitted that there was no intention to kill Dadasaheb and hence the act of the accused should be covered by provision of section 304. We have given our anxious consideration to this position and found force in the argument advanced on behalf of the appellant. A father who wanted custody of his son and when found himself helpless to get custody, he in a hit of anger stabbed his son so as to prevent Sushila from getting custody of his son, and when he realised as to what he had done, he also tried to kill himself. Therefore, we have no doubt that there was no intention to kill Dadasaheb in the said overt act, and the evidence on record is sufficient to show that the act by which the death is caused in done to cause bodily injury as is likely to cause death but without intention to cause death and therefore, the overt act of the accused would be covered by provision of section 304 (firstly) of the Indian Penal Code. Hence the following order : In the result the appeal is partly allowed. The conviction and sentence passed against the appellant for offence punishable under section 302 of the Indian Penal Code is hereby set aside, instead, the accused is found guilty of commission of offence punishable under section 304 (firstly) of the Indian Penal Code and sentenced to suffer R.I. for seven years. The sentence of the appellant for offence under section 309 of the Indian Penal Code is not disturbed and stands confirmed. Both the sentences shall run concurrently. The appellant shall also be entitled to set of under section 428 of the Criminal Procedure Code. Appeal partly allowed. -----