JUDGMENT K. J. ROHEE, J.:- The appellant-accused preferred this appeal against his conviction for the offence punishable u/s. 302 r/w. 34 of IPC and sentence of imprisonment for life imposed by the Session Judge, Nagpur in Session Trial No.405/1995 decided on 9.10.1996. 2. The case of the prosecution, in brief, is that PW-2 Jayawantibai w/o. Anandrao Singare had four sons (including deceased Ganesh, aged about 20 years) and three daughters. She was residing in a hut situated to the north of 8th mile stone on Nagpur Amravati highway. Her husband was serving at Chandrapur. Deceased Ganesh was working as labour on construction site. The co-accused Devidas alias Deva s/o. Madhukar Charbhe, aged about 13 years, was residing in new hutment, also situated to the n0l1h of the said highway. Appellant Santosh, aged about 17 years and co-accused Devidas alias Deva (whose trial was separated and was sent to Juvenile Court) were friends. 3. On 3.5.1995 at about 9.30 a.m. the appellant and Deva assaulted Ganesh near the house of Smt. Dongre situated in new hutment. When Ganesh was lying on the road, a big stone was hit on face causing multiple injuries. PW-4 Mukesh s/o. Gulabrao Gajbhiye who saw the incident tried to chase the appellant and Deva, but they ran away. Thereafter PW4 Mukesh went towards the highway to secure an auto-rickshaw for removing injured Ganesh. PW-4 Mukesh was required to wait for autorickshaw but he got none. At that time he noticed the appellant and Deva proceeding by the road. Both were apprehended by PW-4 Mukesh and others present there. The appellant and Deva confessed their guilt and prayed for pardon. PW-3 Janardhan Bhivaji Gajbhiye informed the police by phone about the incident. PW-2 Jayawantibai also came to know about the incident. She immediately rushed to the place of incident. Ganesh was taken to Wadi Police Station by auto-rickshaw and, thereafter, to Mayo Hospital, Nagpur where he was declared dead. 4. On receiving the telephonic message, PW-6. PSI Thombe, PSI Dabhade (since deceased) and the staff went to the scene of occurrence. They came to know that the injured namely Ganesh was taken to the Police Station. On learning this, they were retuning to the Police Station. On their way, they found that PW-4 Mukesh and Sohit Pal had apprehended the appellant and Deva. PSI Thombe, PSI Dabhade (since deceased) and the staff went to the scene of occurrence. They came to know that the injured namely Ganesh was taken to the Police Station. On learning this, they were retuning to the Police Station. On their way, they found that PW-4 Mukesh and Sohit Pal had apprehended the appellant and Deva. The police party took the appellant and DEV A in custody and came to the Police Station. 5. Around 11.15 a.m. they received ALL MR (Cri) Santosh Narayanrao Chaudhary (Pawar) Vs. State of Maharashtra telephonic message that Ganesh died and his dead body was kept in the mortuary of the Hospital. Hence Crime Nos.49/95 u/s. 302 r/w. 34 of IPC was registered against the appellant and Deva. After registration of offence PSI Dabhade again visited the place of incident and prepared spot panchanama (Exh.8). Two big stones (one whitish) and (another blackish) weighing approximately 10 kgs. stained with blood, four blood stained teeth and certain other articles were seized from the place of incident under seizure memo (Exh.14). On the same day the appellant and Deva were arrested. Blood stained shirt and jeans pant were seized from the person of the appellant under seizure memo (Exh.28). Blood stained shirt was seized from the person of Deva under seizure memo (Exh.15). 6. On the same day inquest panchanama (Exh. 10) was drawn by PSI Patil. Then autopsy was conducted. Multiple lacerated wounds, contused abrasions on the face and surrounding portion of the body of deceased Ganesh were noted. Multiple fractures including depressed fracture of skull vault were noted. On the next day, blood stained clothes of the deceased Ganesh were seized under seizure memo (Exh.16). The report of Chemical Analyser revealed that the blood group of deceased Ganesh was 'A' and that of the appellant is 'B'. The blood group of Deva could not be ascertained. Human blood was found on the stones. Blood group 'A' was found on the jeans pant and scalp hair of the appellant. Statements of witnesses were recorded promptly. After completion of investigation the appellant and co-accused Deva were charge-sheeted. Afterwards the charge-sheet against Deva (Juvenile) was separated. 7. The defence of the appellant is that on 3.5.1995 at about 8.00 a.m. he and Deva were proceeding towards the house of Deva. Ganesh met them near the house of Smt. Raut. Statements of witnesses were recorded promptly. After completion of investigation the appellant and co-accused Deva were charge-sheeted. Afterwards the charge-sheet against Deva (Juvenile) was separated. 7. The defence of the appellant is that on 3.5.1995 at about 8.00 a.m. he and Deva were proceeding towards the house of Deva. Ganesh met them near the house of Smt. Raut. The elder brother of Ganesh has got an house adjoining the house of Smt. Raut. Ganesh asked the appellant and Deva to take away the wooden logs from the house of his elder brother. The appellant and Deva refused to oblige Ganesh. Thereupon Ganesh threatened them. Ganesh also slapped the appellant and Deva. The appellant and Deva ran away from the place. 8. Around 9.30 a.m. when the appellant was proceeding towards the house of Deva, he noticed that quarrel was going in between Ganesh and Deva near the house of Smt. Dongre. Deva escaped, Ganesh lost control and fell down on a big stone. Many stones were lying there. Ganesh sustained head injury. Many persons assembled there. Thereafter the appellant and Deva ran away from the place. The residents of the locality chased then and apprehended then on Amravati Road. Then the Police arrived and took them in custody. 9. The prosecution examined seven witnesses. PW-4 Mukesh s/o. Gulabrao Gajbhiye is the star witness; PW-3 Janardhan s/o. Bhivaji Gajbhiye is the witness who informed the police; PW-2 Jayawantibai w/o. Anandrao Singare is the mother of deceased Ganesh; PW-1 Sannu Arik Das is the panch; PW-5 Dr. Malusare is the Medical Officer who collected blood sample hair sample and nail clipping of the appellant; PW-6, PSI Thombe and PW-7. PSI Gowande arc the investigating officers. 10. The trial Court held that Ganesh met with homicidal death. The trial Court further held that the appellant in furtherance of common intention with Deva assaulted Ganesh with big stones and committed his murder. The trial Court accordingly convicted and sentenced the appellant. The said conviction and sentence is under challenge. 11. We have heard Shri. A. V. Khare, Advocate for the appellant and Shri. D. B. Yengal, APP for the respondent. We have also gone through the record and proceedings of the sessions trial with the assistance of the learned counsel for the parties. 12. The learned counsel for the appellant vehemently urged that PW-4 Mukesh is the sole eye-witness in the present case. We have also gone through the record and proceedings of the sessions trial with the assistance of the learned counsel for the parties. 12. The learned counsel for the appellant vehemently urged that PW-4 Mukesh is the sole eye-witness in the present case. The statement of Sohit Pal, who allegedly helped PW- Mukesh in apprehending the appellant and Deva soon after the incident, was recorded during investigation. However, he was not examined before the Court. Likewise the names of the persons, who helped PW- Mukesh and Sohit Pal in apprehending the appellant and Deva, were not ascertained during investigation and were not examined before the Court. PW3 Janardhan told entirely different version and is not an eye-witness. He does not refer to the names of the appellant and Deva. Hence, there is no corroboration to the testimony of PW Mukesh. The learned counsel for the appellant further submitted that the evidence on record shows that the residents surrounding the place of the alleged incident saw the assault from their houses. However neither their names were ascertained during investigation nor they were examined before the Court. In fact, they were material witnesses. They ought to have been examined by the prosecution. In the absence of their examination adverse inference should have been drawn against the prosecution. The prosecution rested with examining PW-4 Mukesh only, who is the friend of deceased Ganesh and is thus an interested witness. The trial Court was wrong in placing reliance on the testimony of PW- Mukesh. 13. In support of the above submissions, the learned counsel for the appellant relied on the following cases:- (1) In Bir Singh and others Vs. The State of Uttar Pradesh, AIR 1978 SC 59 (A), in which it is held that: "It is not incumbent on the prosecution to examine each and every witness so as to multiply witnesses and burden the record. This rule however does not apply where the evidence of the eye-witnesses suffers from various infirmities and could be relied upon only ]f properly corroborated. Where all the eye-witnesses examined by the prosecution had serious animus against the accused and were interested in implicating the accused and neither independent witnesses were examined not any reasonable explanation was given by the prosecution, the Court \\'ould be justified in drawing an adverse inference against the prosecution, " (2) In Jagdeo Singh and others Vs. Where all the eye-witnesses examined by the prosecution had serious animus against the accused and were interested in implicating the accused and neither independent witnesses were examined not any reasonable explanation was given by the prosecution, the Court \\'ould be justified in drawing an adverse inference against the prosecution, " (2) In Jagdeo Singh and others Vs. State, 1979 Cri.L.J. 236, in which it is held that: "Eye-witnesses were close relations with the deceased and independent witnesses living in vicinity of scene of occurrence were not examined by the prosecution and two independent witnesses examined did not implicate the accused. It was held that its a concocted case." (3) In Jang Singh and others Vs, State of Rajasthan, 2001 AIR SCW 2322, in which it is held that: "wherein the murder had taken place at bus stop, however, prosecution story was based only on the evidence of sole witness who lodged FIR and no attempt was made by prosecution to examine other passengers traveling in the bus. On this background it was held that conviction of the accused persons on the basis of evidence of sole eye-witness was improper." (4) In Hem Raj and others V s, State of Haryana, 2005(2) Crimes 45 (S.C.), in which it is held that: "Non-examination of independent witness by itself may not give rise to adverse inference, but when evidence of alleged eyewitnesses who were related to deceased raised serious doubt on their presence. unexplained omission in examining independent witness will assume significance." 14. The learned counsel for the appellant further submitted that neither the appellant nor Devil was armed with any weapon and as such the theory of homicidal death is rendered false whereas there is probability of accidental death of Ganesh as propounded by the defence. It was further submitted that no particular injury has been attributed to the appellant and there is no material to connect ALL MR (Cri) Santosh Narayanrao Choudhary (Pawar) Vs. State of Maharashtra the appellant with the death of Ganesh. It was further pointed out that the Medical Officer who conducted autopsy was not examined. In fact it was necessary to examine the Medical Officer in order to prove conclusively the cause of death of Ganesh. 15. In this respect the learned counsel for the appellant relied on Jagdeo Singh and others Vs. It was further pointed out that the Medical Officer who conducted autopsy was not examined. In fact it was necessary to examine the Medical Officer in order to prove conclusively the cause of death of Ganesh. 15. In this respect the learned counsel for the appellant relied on Jagdeo Singh and others Vs. State, 1979 Cri.L.J. 236 (Allahabad High Court), in which it is held that: "Post-mortem report by itself proves nothing as it is not a substantive piece of evidence. It is only a previous statement of the doctor based on his examination of the dead body. It is the statement of the doctor made in Court which alone is the substantive evidence. In view of this legal position exhibiting of post-mortem report under S.294. Cr.P.C. is not permissible and even if such an exhibiting has been done, the report itself cannot be used as a substantive police of evidence until and unless the doctor concerned has been examined in Court." 16. Lastly the learned counsel for the appellant submitted that the conviction and sentence of the appellant is illegal and is liable to be set aside. 17. The learned APP, on the other hand. Justified the impugned Judgment. He submitted that Sohit Pal could not be examined as he was not traceable. Hence no adverse inference can be drawn against the prosecution. He submitted that there is a growing tendency in the people who saw an incident like murder not to come forward to support the prosecution. Hence, on this ground, no adverse inference can be drawn against the prosecution. The learned APP submitted that though PW-Mukesh was the fried of deceased Ganesh, it has not been brought on record that PW-Mukesh had any animus towards the appellant or Deva. Thus the trial Court was justified in relying upon the sale testimony of PW- Mukesh. The learned APP further submitted that the Medical Officer who conducted autopsy in the present case was not examined by the prosecution because the appellant admitted the genuineness of the postmortem report. He submitted that where the genuineness is not disputed it can be read in evidence in the trial under the provisions of sub-section 3 of section 293 of Cr.P.C. In view of this there is nothing wrong in relying on the post-mortem report (Exh.18) as suhstantive piece of evidence. 18. He submitted that where the genuineness is not disputed it can be read in evidence in the trial under the provisions of sub-section 3 of section 293 of Cr.P.C. In view of this there is nothing wrong in relying on the post-mortem report (Exh.18) as suhstantive piece of evidence. 18. The learned APP submitted that the prosecution has proved that Ganesh met with homicidal death and that the appellant was responsible for causing the death. The appellant was rightly convicted by the trial Court and no interference is called for. 19. We have carefully considered the rival contentions. The testimony of PW-4 Mukesh shows that on the date of incident in the morning he was retuning from Mandpe layout. He noticed 2-3 persons quarreling with each other near the house of Dongrebai. Appellant Santosh. Deva and Ganesh were those persons. Ganesh was lying down and the appellant and Deva were beating him by a stone. They hit the stone on the face of Ganesh. PW4 Mukesh rushed to catch hold of the appellant and Deva but they ran away from the spot. During cross-examination PW-4 Mukesh stated that people were standing near the doors of their houses and did not assemble near the quarreling boys. None of the persons residing in the neighbourhood came to separate the quarreling boys. He added that except himself nobody tried to chase the appellant and Deva. The people residing in the neighbourhood were watching the events from a distance of about 10 to 15 ft. The quarrel was going on a small road. There were houses situated on either side of the small road. PW-4 Mukesh was at a distance of about 150 ft. when the appellant and Deva hit the stone on the face of Ganesh. PW- Mukesh identified the stone (Art.1) because such kind of white stones are rare. He further stated that actually the appellant hit the stone on the face of Ganesh. The appellant alone lifted the stone and hit the same on the face of Ganesh. It did not happen that both the appellant and Deva hit the stone on the face of Ganesh. He added that his statement before the Police that the appellant and Deva together were assaulting Ganesh lying on the ground with a stone is also correct. He admitted that deceased Ganesh was his friend. It did not happen that both the appellant and Deva hit the stone on the face of Ganesh. He added that his statement before the Police that the appellant and Deva together were assaulting Ganesh lying on the ground with a stone is also correct. He admitted that deceased Ganesh was his friend. Thus it would be seen that the testimony of PW-4 Mukesh is quite trustworthy and he had no reason to depose false against the appellant. 20. PW -4 Mukesh further stated that he had gone to the highway for getting auto rickshaw but could not get it for about 10 minutes. At that time he noticed the appellant and Deva proceeding by the road. PW- Mukesh and others who were present there tried to apprehend the appellant and Deva, but they themselves came to Mukesh and confessed that they committed "mistake" and that committed murder of Ganesh. The police arrived on the spot and took the appellant and Deva in their custody. During cross-examination PW-4 Mukesh stated that Sohit Pal already apprehended Santosh. At the end of cross-examination he admitted that he had omitted to state before the police that the appellant had also confessed to have committed the murder of Ganesh. It is true that there is some improvement in the version of PW-4 Mukesh in respect of the extra judicial confession alleged to have been made by the appellant and Deva, but one thing is certain that according to PW-4 Mukesh the appellant and Deva admitted that they committed "mistake". Considering the background of the incident it is apparent that the mistake means assaulting Ganesh with stone. Thus we see no reason to disbelieve PW-4 Mukesh. 21. As pointed by the learned API Sohit Pal could not be examined as he was not traceable. This is corroborated by the record. Hence we are not inclined to draw adverse inference for non examination of Sohit Pal. 22. It is true that it has come in the evidence of PW -4 Mukesh that the neighbours were watching the event from close quarter. It is true that those neighbours were not ascertained and they were not interrogated during investigation. However, the testimony of PW-4 Mukesh is quite convincing and inspires confidence. 22. It is true that it has come in the evidence of PW -4 Mukesh that the neighbours were watching the event from close quarter. It is true that those neighbours were not ascertained and they were not interrogated during investigation. However, the testimony of PW-4 Mukesh is quite convincing and inspires confidence. It may be that the neighbours who watched the incident could have corroborated the testimony of PW-4 Mukesh, but even in the absence of such corroboration the testimony of PW-4 Mukesh can be accepted and acted upon. 23. PW-3 Janardhan Gajbhiye, nowhere stated that he witnessed the incident of assault on Ganesh. As such there is no question of PW-3 Janardhan telling different story. Nothing depends on his testimony and it cannot be taken as running contrary to that of PW-4 Mukesh. 24. It is true that the Medical Officer who conducted autopsy were not examined and the post-mortem report was exhibited as the appellant admitted the genuineness of the said document. As in 1979 Cri.L.J. 236 (Allahabad High Court - supra), the Divisions Bench of this Court in Ganpat Raoji Suryavanshi Vs. State of Maharashtra, 1980 Mh.L.J. 60, held that Section 294 cannot be resorted to for admitting Post-Mortem Report. But the Full Bench of this Court in Shaikh Farid Hussiusab Vs. State of Maharashtra, 1983 Cr.L.J. 487, held that: "The post-mortem report is receivable in evidence without the doctor's evidence and can still furnish corroborative evidence to support other evidence in the case." At the end the Full Bench held that Ganpat Raojis case (supra) was not correctly decided. Thus the said case was overruled. 25. In view of the above legal position the post-mortem report (Exh.18) can be read in evidence and can be used to corroborate other evidence. In column no.17 of the postmortem report (Exh.18), the following injuries were noted: (i) Face distroted left side of face appears depressed. Lacerated wound on fox head left side oblique, 2 cm x 1 cm x bone deep surrounded by contused abrasion 1/2 cm edges ragged haemorrhage in tissue present. (ii) 1cm lateral to injury No.(1) Lacerated wound present, oblique 5 cm x 1 cm x cavity deep, edges contused, ragged haemorrhage in tissue present. (iii) Lacerated wound, 1/2 cm below injury No.(2) vertical at lateral angle of left eye 1 1/2 cm x 1 cm x Bone deep. Edges ragged haemorrhage in tissue present. (ii) 1cm lateral to injury No.(1) Lacerated wound present, oblique 5 cm x 1 cm x cavity deep, edges contused, ragged haemorrhage in tissue present. (iii) Lacerated wound, 1/2 cm below injury No.(2) vertical at lateral angle of left eye 1 1/2 cm x 1 cm x Bone deep. Edges ragged haemorrhage in tissue present. (iv) Lacerated wound, 2 cm below injury No.(3), oblique 1 x 1/2 cm x bone deep surrounded by contusion of 21/2 cm diameter. (v) Contused abrasion on left masseter region 4 x 4 cm size redish brown in colour. (vi) Contused abrasion on chin 3 cm x 21/2 cm redish brown. (vii) Lacerated wound on lower lip inner aspect 1/2 cm x 1/2 cm, 2 cm left of midline margins ragged, swollen. (viii) Lacerated wound on upper lip in middline 1 x 1/2 cm edges ragged swollen. (ix) Contused abrasion below right eye brow 3 cm from midline 3 cm x 1 cm brown. (x) Contused abrasion on right matter prominence 3 cm x 2 cm brown. (xi) Contused abrasion over right cheek 2 cm from right angle of month 2 cm x 2 cm, brown 3 cm from mandibular lower margin. (xii) Contused abrasion on tip of nose 1 x 1 cm, brown. (xiii) Contused abrasion on root of nose 1 x 1.2 cm brown. (xiv) Contused abrasion tip of left shoulder 2 cm x 2 cm brownish. (xv) Two contused abrasion on back in midline against L3 and L4 - 1 x 1 cm each. (xvi) Multiple tiny contused abrasion over 3 cm x 3 cm area on left side of neck 3 cm above left stemoclavicular joint sizes ranging from 1/2 x 1/2 cm to 1/4 x 1/4 cm brownish in colour. 26. In column no.18 of the postmortem report (Exh. I 8), the following fractures were noted : (i) Fracture upper left canine and adjoining 3 incisions fractured and missing. (ii) Fracture mandible. (iii) Fracture nasal bones. (iv) Fracture - Frontal parietal bones. It was opined that those injuries were ante-mortem and that the probable cause of death was head injury. 27. We have called for the stones. We have seen the white stone (Art.1) which weighs approximately 10 kgs. There is every probability that the appellant might have lifted the stone and might have hit it on the face of Ganesh causing multiple injuries including fractures. 27. We have called for the stones. We have seen the white stone (Art.1) which weighs approximately 10 kgs. There is every probability that the appellant might have lifted the stone and might have hit it on the face of Ganesh causing multiple injuries including fractures. The defence version that in the quarrel between Ganesh and Deva, Deva ran away from the spot, Ganesh lost control, fell down on big stone and sustained head injuries appear to be improbable. Merely by fall such multiple serious injuries could not have been caused. Thus the death of Ganesh could not be accidental as suggested by the defence, but was homicidal. 28.One thing appears to be certain that the appellant was not armed with any weapon. There was no enmity as such between the appellant and Ganesh. There was no premeditation in assaulting Ganesh. The assault on Ganesh might be in a sudden fight in the heat of passion upon sudden quarrel. Hence the present case would fan under Exception (4) to section 300 of the Code of Criminal Procedure. Thus it would be culpable homicide not amounting to murder. The circumstances on record show that there was no intention on the part of the appellant to kill Ganesh, though the appellant can be attributed with the knowledge that by hitting with a weighty stone on face might cause death. Consequently the case would fall under Section 304, Part-II of IPC. This aspect has not been considered by the trial Court. Hence, the impugned judgment will have to be modified to that extent. 29. It may be noted that at the time of incident the appellant was very young, aged about 18 years. The said incident took place way back in 1995. Almost 12 years have passed after the incident. Considering these circumstances in our opinion:, R.I. for 5 years would meet the ends of justice. We, therefore, pass the following order: ORDER (i). The appeal is partly allowed. The conviction of the appellant for the offence punishable under section 302 r/ w. 34 of IPC and sentence of imprisonment for life there under is hereby set aside. (ii) The appellant is convicted for the offence punishable under Section 304, Part-II of IPC and is sentenced to suffer R.I. for 5 years. The appeal is partly allowed. The conviction of the appellant for the offence punishable under section 302 r/ w. 34 of IPC and sentence of imprisonment for life there under is hereby set aside. (ii) The appellant is convicted for the offence punishable under Section 304, Part-II of IPC and is sentenced to suffer R.I. for 5 years. (iii) Needless to mention that the period of his detention, if any, during trial be set off against the above term of imprisonment. (iv) The appellant is directed to surrender within two weeks to serve out the sentence. Appeal partly allowed.