Judgment S.B.DESHMUKH, J. 1. The appellants, who have been convicted for the offence punishable under section 302 read with section 34 of the Indian Penal Code, in Sessions Case No. 101/2003, directing them to suffer imprisonment for life, are in appeal before this Court under Section 374(2) of the Code of Criminal Procedure. 2. This appeal was before this Court on July 20, 2005. After hearing the counsel for the appellants, the appeal was admitted by this Court and record and proceedings was called. Two appellants, after conviction and sentenced by the learned trial Court, were lodged in jail. Their communication addressed to this court was registered as Criminal Appeal No. 414/2005. The appeal filed on behalf of these two appellants through advocate was already registered as Criminal Appeal No. 366/2005. In this view of the matter, Criminal Appeal No. 414/2005, registered on the basis of the communication from the appellants who were in jail at the relevant time, came to be dismissed as infructuous. This order was passed by the Division Bench of this Court on August 18, 2005. By the said order this Court had directed to keep Criminal Appeal No. 414/2005 (decided) along with the present Criminal Appeal for future reference and this is how the present Criminal Appeal No. 366/2005 was listed for hearing before this Court. 3. At the outset, the learned counsel Mr. Badar, appearing for the appellants, on instructions, made a statement that the appellant no.2 – Fulsing Akaram Solanke, who was 65 years old on the date of filing of the appeal, expired during the pendency of the appeal in jail. His statement, has not been disputed by the learned APP present before the Court that appellant no.2 Fulsing Akaram Solanke has expired. In view of this circumstance, the present appeal, in relation to appellant no.2 Fulsing Akaram Solanke, stands abated. 4. We have, however, proceeded to hear the learned counsel Mr. N.A.Badar for appellant no.1 and APP for the respondent State. 5. The prosecution story, in brief, may be stated thus; Both the appellants and deceased Shrikrishna and complainant Balu are cousin brothers. Six months prior to the incident, wife of deceased Shrikrishna viz. Indira had eloped with the son of appellant no.1 Mr. Ramchandra Solanke. This was the cause of enmity amongst deceased Shrikrishna on one side and both the appellants on the other hand. Six months prior to the incident, wife of deceased Shrikrishna viz. Indira had eloped with the son of appellant no.1 Mr. Ramchandra Solanke. This was the cause of enmity amongst deceased Shrikrishna on one side and both the appellants on the other hand. On 5th March, 2003, in the night time, Shrikrishna after consuming liquor started abusing the appellant in filthy language. This annoyed the appellants and, therefore, both of them along with one Dnyaneshwar came out armed with sticks and knife and inflicted blows on Shrikrishna. Shrikrishna was taken to the hospital and was declared dead by the Medical Officer concerned. Both the appellants were arrested. Balu Motiram Solunke, lodged oral report to the Police Station, Walgaon. It was reduced into writing by one A.P.I., K.M.Meshram. Based on the report (Exh.37), Crime No. 42/2003 under section 307 read with section 34 of the Indian Penal Code was registered. Thus, the criminal law was set in motion. P.W.6 API, Meshram went to the General Hospital, Amravati since deceased Shrikrishna was admitted there. On the next date i.e. on 6th March, 2003 API, Meshram (P.W.6) recorded the scene of offence panchanma (Exh.61) in presence of two pancha witnesses. Amongst these two panch witnesses, P.W.5 Mr. Ramdas s/o Jairam Malwe has been examined on behalf of the prosecution. A.P.I., Meshram (P.W.6) has also held inquest panchanama (Exh.62). Under this inquest panchanama (Exh.62) from the place of incident sample of blood stained earth, plain earth, pieces of bangles were attached under seizure memo (Exh.67) in presence of the panch witnesses. The appellants i.e. both the accused persons were arrested. According to P.W.6 API, Meshram, appellant no.1 Ramchandra made a disclosure statement and showed his willingness to produce sword stick – the weapon allegedly used in commission of crime. Such statement was also allegedly made by appellant No.2 Fulsing. However, we are not resorted to note it since the appeal filed by the appellant no. 2 Fulsing is abated on account of his death. Memorandum Panchanama (Exh. 63) regarding statement made by appellant no.1 Ramchandra, has been recorded in Memorandum (Exh.63) in the presence of the panch witnesses P.W.5 Ramdas Malwe and other panch witness Vishwanath. This memorandum statement shows that appellant no. 1 Ramchandra had shown willingness to produce gupti (smeared with blood) which he had hidden under the heap of turati (dried sticks of tur) in the courtyard of his house. This memorandum statement shows that appellant no. 1 Ramchandra had shown willingness to produce gupti (smeared with blood) which he had hidden under the heap of turati (dried sticks of tur) in the courtyard of his house. After recording of this memorandum Exh. 63, investigating officer Meshram and panch witnesses were allegedly led by appellant no.1 Ramchandra. Resultantly, one iron gupti (sword stick) smeared with blood, description of which is recorded in seizure memo (Exh.64), was produced by appellant no.1 Ramchandra. The seizure memorandum (Exh.64) was drawn in the presence of P.W.5 Ramdas and other pancha Vishwanath by P.W.6 Meshram API. The clothes on the person of the accused were seized on 7/3/2003, which were blood stained. It is specifically alleged that dhoti of accused no.2 Fulsing was stained with blood. P.W.6, API, Mr. Meshram took blood sample of both the appellants on 11/3/2003. He, thereafter, handed over the investigation of the crime in question to other Police Officer P.W.3 Kashinath Apar. On 12/3/2003, incriminating articles were forwarded to chemical analyser. The report from the analyser is at Exh.73. After completion of the charge sheet, the Investigating Officer found sufficient material against the appellants and, therefore, submitted charge sheet to the learned Judicial Magistrate First Class. The offence under section 302 read with section 34 of the Indian Penal Code, which was added after the demise of Shrikrishna, being exclusively triable by the Court of Session, the case was committed to the Court of Session. After committal to the Court of Session, charge (Exh.22) was framed on 17/4/2003 and was explained to the appellants who denied the same and claimed to be tried. The defence of the appellants was that of total denial. 6. The Additional Sessions Judge on trial convicted both the appellants as we have referred to in foregoing paragraphs. 7. The prosecution, in support of its charge against the appellants (Exh.22) framed on 17/1/2004, examined six witnesses. Apart from oral evidence of six prosecution witnesses, 78 documents have been placed on record formally proved and exhibited. Thus, the nature of the prosecution evidence, is oral evidence of those witnesses, medical evidence containing post mortem report and injury certificate regarding injuries sustained by deceased Shrikrishna and prosecution witness no.1 Balu. The circumstantial evidence is by way of seizure of gupti (alleged weapon used while commission of the crime). Thus, the nature of the prosecution evidence, is oral evidence of those witnesses, medical evidence containing post mortem report and injury certificate regarding injuries sustained by deceased Shrikrishna and prosecution witness no.1 Balu. The circumstantial evidence is by way of seizure of gupti (alleged weapon used while commission of the crime). We have seen the statements of both the appellants under section 313 of the Code of Criminal Procedure. No defence witness is examined on behalf of both the appellants. Their defence is of total denial. Appellant no.1 Ramchandra, in response to question no.18 as to why witnesses are deposing against him, replied that wife of deceased Shrikrishna is 35 years old whereas his son Santosh is just 17 years old. Wife of deceased Shrikrishna has taken away his son Santosh with her. However, Shrikrishna was unnecessarily abusing them. He had left the village and went to stay at Bhatkali. This is the ground for, according to him, P.W.1 Balu is deposing against him. 8. Even though the prosecution has examined six witnesses, P.W.1 Balu is the only eye witness. Before adverting to the evidence of only eye witness, we shall turn to find out the nature of the death of Shrikrishna. The prosecution has examined P.W.2 Dr. Rohit Arvind Ganediwal, who at the relevant time, was attached to the Primary Health Center, Walgaon, District: Amravati. His evidence reveals that on 6/3/2003 he was on duty at the said Primary Health Centre, as a Medical Officer. Three patients were referred to him by the Police Station, Walgaon viz. i) Shrikrishna Motiram Sonanke (deceased), r/o: Walgaon; ii) Balu Motiram Solanke (complainant); and iii) Jyoti Balu Solanki (wife of P.W.1Balu). He examined three patients. In case of Shrikrishna, he found three injuries which we reproduce hereinbelow. 1. Incised wound size 1 ½ inch x 1 cm. X 3 cm over the abdomen which might have been caused by sharp and pointed object. Injury was fresh. 2. Incised wound 1 ½ inch x 1 cm x 2 cm. Over the abdomen which might have laso been caused by pointed and sharp weapon which was fresh in nature. 3. Incised wound 1 inch x 1 cm x 1 cm over the face (chin) caused by sharp and pointed object, fresh in nature. He opined that healing time of these three injuries is about 7 days. Over the abdomen which might have laso been caused by pointed and sharp weapon which was fresh in nature. 3. Incised wound 1 inch x 1 cm x 1 cm over the face (chin) caused by sharp and pointed object, fresh in nature. He opined that healing time of these three injuries is about 7 days. He referred Shrikrishna – patient to the General Hospital, Amravati as his condition was not good. Shrikrishna was bleeding profusely. Apart from the injuries noticed by him, there would be other injuries on his person, as Shrikrishna was extensively bleeding and as his condition was serious. In other words, he has stated that he could not notice and record all the injuries on the person of Shrikrishna because of extensive bleeding. He accordingly issued certificate under his signature (Exh.44). Look to the certificate (Exh.44) shows description of three injuries sustained by deceased Shrikrishna. All these three injuries were incised wounds. Their description has been given in the certificate (Exh.44). Location of the injuries 1 and 2 is shown over abdomen and location of third injury is shown over face (chin). Type of weapon for inflicting such injuries is shown in the certificate (Exh.44) as sharp and pointed for all three injuries. Probable age of the injuries i.e. of the three injuries is shown as fresh. The certificate appears to have been issued by this witness on 6/3/2003. Time of examination of deceased Shrikrishna was 2.00 a.m. on 6th March, 2003. In cross-examination on behalf of appellant no.1 Ramchandra, he states that he has mentioned the injuries on the person of Shrikrishna when he examined him and which were visible. He made voluntary statement that there might have other injuries on the person of Shrikrishna. He denied the suggestion that injuries sustained by Shrikrihsna were not grievous. We are not adverting to the cross examination on behalf of the appellant no.2Fulsing since his appeal has been abated on account of his death. On behalf of the prosecution, P.W.4 Dr. Kishor has been examined, who, at the relevant time, was attached to General Hospital, Amravati, conducted autopsy on the dead body of deceased Shrikrishna. He had noticed around 9 injuries which are reproduced hereinbelow. 1. Stab wound over abdomen medial to ambilucuous, right side size 1/2” x 1/4” x 1”. 2. On behalf of the prosecution, P.W.4 Dr. Kishor has been examined, who, at the relevant time, was attached to General Hospital, Amravati, conducted autopsy on the dead body of deceased Shrikrishna. He had noticed around 9 injuries which are reproduced hereinbelow. 1. Stab wound over abdomen medial to ambilucuous, right side size 1/2” x 1/4” x 1”. 2. Stab wound medic purforating over chest right side at 11th reb level having size ½” ¼” x cavity. 3. Stab wound over back right side ½” x ¼” x 2”. 4. Stab wound over left thigh laterally having size ½” x ¼” x ½” deep. 5. Incised wound over cheek 2” x ½” x ½”. 6. Abrasion over back below left scapula 3” x 2”. 7. Abrasion over left side back over left shoulder, having size 2”x2”. 8. Abrasion over left elbow having size ½” x ½”. 9. Abrasion over tip of nose left side having size ½” x ½” there was fracture of Tibio fabula right upper part. According, to P.W.4 Dr. Kishor, all the injuries which he has noticed while carrying out autopsy, were antemortem. There were no injuries on brain/scalp of deceased Shrikrishna. Peritoneum was perforated right upper part of abdomen. It is stated by him that there was collection of blood in peritonium cavity and there was perforating wound over right lobe of liver, over right low of lever over upper part, having size ½' x ¼' x 3' deep. He opined that cause of death of Shrikrishna is shock due to injuries to vital organs like lever with haemorrhages with fracture to tibio fibula right upper part. Viscera was preserved. He accordingly, issued post mortem report Exh.54. According to him, injury at sr. no.2 is in correspondence to the internal injury to the lever. Injuries mentioned in column no.17 of the postmortem report are independent injuries. He further has stated that because of the injuries in question, there was internal bleeding. Lever, according to him, is vital part of the body. Injury at sr. no.2 i.e. stab wound medic perforating over chest right side at 11th reb level having size ½” x ¼” x cavity deep is sufficient to cause death in the ordinary course of nature. He had received a letter/ requisition (Exh.52) from the police seeking his opinion. He had examined the weapon, shown to him. He accordingly gave opinion. no.2 i.e. stab wound medic perforating over chest right side at 11th reb level having size ½” x ¼” x cavity deep is sufficient to cause death in the ordinary course of nature. He had received a letter/ requisition (Exh.52) from the police seeking his opinion. He had examined the weapon, shown to him. He accordingly gave opinion. His opinion is on record at Exh.55. In substance, he opined that injuries 1 to 5 in column no. 17, may be caused due to weapon which has been inspected by him. Viscera was handed over by him to the police. In cross examination, he states that there is a difference in weapon gupti and knife. Rigour mortis, according to him, starts from back portion after about 15 to 16 hours after the death. He denied the suggestion that due to rigour mortis damage was caused to injury no.2. He denied the suggestion that he was not able to state the age of injuries since rigour mortis was started. He denied the suggestion that tibio fibula is not a vital organ of the body. He also denied the suggestion that in the given condition, if the patient would have given immediate treatment, he would have been saved. He also denied the suggestion that he was uncertain about the death of Shrikrishna and, therefore, viscera was preserved. He conceded that injuries 3 to 5 are not on vital part of the body. He also denied the suggestion that no weapon was referred to him for opinion in this case. Thus, from the oral evidence of P.W.4 Dr. Kishor Deshmukh and post mortem report (Exh.54) and opinion in writing given by this witness Dr. Kishor (Exh.55), death of Shrikrishna is proved to be homicidal death. The possibility of accidental death stands ruled out. 9. We shall now turn to the evidence of P.W.1 Balu Solankea sole eye witness examined on behalf of he prosecution. It reveals from his evidence that Motiram Solanke was having three sons viz. Shrikrishna (since deceased), Devidas and Balu. Shrikrishna was married to Indira. Shrikrishna and Indira were having two sons and a daughter. Santosh is a son of appellant no.1 Ramchandra. Santoshson of appellant no.1 Ramchandra and Indira fled away. P.W.1 Balu claims that this incident took place 1½ year prior to recording of his evidence on 19th October, 2003. Shrikrishna (since deceased), Devidas and Balu. Shrikrishna was married to Indira. Shrikrishna and Indira were having two sons and a daughter. Santosh is a son of appellant no.1 Ramchandra. Santoshson of appellant no.1 Ramchandra and Indira fled away. P.W.1 Balu claims that this incident took place 1½ year prior to recording of his evidence on 19th October, 2003. In cross examination he admits that on account of this incident, Balu himself, his deceased brother Shrikrishna and Devidas were annoyed and felt insulted. Appellant No.1 Ramchandra and appellant no.2 Fulsing were real brothers. After the incident of fleeing away Santosh and Indira, Shrikrishna used to abuse appellant no.1 Ramchandra after consuming liquor. About 25 to 30 houses seems to be in the locality where spot of incident situates. Amongst these 35 to 40 houses, 10 houses are belonging to Solanke family. P.W.1 Balu is a neighbour of Vitthal Solanke, Sheshrao Solanke, gopalrao Solanke, Sangitrao Solanke and Lalchand Solanke. The house of the accused is at the corner of the house of P.W.1 Balu, however, located in a ditch. From the house of P.W.1 Balu, house of the accused is not visible. P.W.1 Balu claims that at about 11.00 in the night, Shrikrishna was sitting in the courtyard abusing appellant no.2 Fulsing. At that time, appellant no.1 Ramchandra stabbed Shrikrishna with gupti. Dnyaneshwar ( who is not accused before the trial court ) and Fulsing appellant no.2 assaulted Shrikrishna. Shrikrishna fell on the ground. Thus, P.W.1 Balu attributed attack by appellant no.1 Ramchandra with gupti to deceased Shrikrishna and assault by Dnyaneshwar and Fulsing to Shrikrishna by stick. We have no concern with Dnyaneshwar. Fulsingh – appellant no.2 is no more. Important claim of P.W.1 Balu is that he tried to intervene this assault by appellant no.1 Ramchandra and Fulsing on deceased Shrikrishna and in that exercise he had sustained stick blow on his left hand from Dnyaneshwar. He also claims that he sustained bleeding injury. His further contention is that his wife Jyoti also tried to separate him. However, there was a scuffle amongst the appellant no.1 Ramchandra and his wife Jyoti and her bangles were broken. He thereafter orally lodged report which was reduced into writing. Exh.37 is the oral report. Oral report of P.W.1 Balu ( Exh.37) is duly proved. The substantive evidence of P.W.1 Balu is being assessed and considered by us. However, there was a scuffle amongst the appellant no.1 Ramchandra and his wife Jyoti and her bangles were broken. He thereafter orally lodged report which was reduced into writing. Exh.37 is the oral report. Oral report of P.W.1 Balu ( Exh.37) is duly proved. The substantive evidence of P.W.1 Balu is being assessed and considered by us. The oral report i.e. FIR (Exh.37), can be considered regarding corroboration to the substantive evidence of P.W.1 Balu. It is also important from the view point of omissions, contradictions, if any. Omissions in the evidence of P.W.1 Balu, have been duly proved. First omission is in respect of the user of gupti by appellant no.1 Shrikrishna. He claims that he had stated so before the police while recording his statement by the police on 18/3/2003. We have also noticed another omission from the evidence of P.W.1 Balu that he had not stated before the police while recording his statement that after reaching home at 12.00 i.e. intervening night of 5th March, 2003 and 6th March, 2003 he slept. The contraction marked by letter 'A' in his statement before the police that after the first incident of abuses at 10.00 p.m. by deceased Shrikrishna on 5th March, 2003, P.W.1 Balu and his wife Jyoti went to their house and slept. We may make it clear that this contradiction/ omission, is only in respect of the oral report Exh.37. In other words, it is not the substantive evidence of P.W.1 Balu before the Court that the first occurrence of abusing by deceased Shrikrishna on 5th March, 2003 at 10 a.m. to the accused, was either heard or witnessed by them and thereafter they went to their house and slept. In the substantive evidence of P.W.1 Balu claims at about 11.00 in the night of 5/3/2003 deceased Shrikrishna was sitting in the courtyard abusing Fulsing (appellant no.2) and that time appellant no.1 Ramchandra stabbed Shrikrishna with gupti. We have considered the suggestions given to P.W.1 Balu that he has implicated both the appellants falsely as assailants. These suggestions have been denied by him. We have noticed that P.W.1 Balu has admitted that, after noticing the incident more specifically that Shrikrishna sustained stab injury and fell on the ground, they left the spot for police station without rushing towards Shrikrishna for help. These suggestions have been denied by him. We have noticed that P.W.1 Balu has admitted that, after noticing the incident more specifically that Shrikrishna sustained stab injury and fell on the ground, they left the spot for police station without rushing towards Shrikrishna for help. We have considered his claim in cross examination in para no.4 that he heard the shouts, came out of the house and his wife was with him. It is not possible for us to accept the contention of the appellant, that P.W.1 Balu came out of his house and found that Shrikrishna was lying on the ground, meaning thereby assault on him had taken place earlier which was not seen or witnessed by P.W.1 Balu. We have also noticed the suggestion denied by him that after 12 days he himself went to the police station and gave statement. From the record, we find that his statement was recorded on 18/3/2003 by Police. The evidence of P.W.3 Kashinath Apar PSI who participated in investigation for some time, is pointed to us by the learned counsel appearing for the appellant. He categorically states that he recorded the statement of P.W.1 Balu Solanke. In cross examination on behalf of the appellant no.2, he admits that he did not record statement of Devidas Solanke the other real brother of P.W.1 Balu. He however denied the suggestion that incident as narrated by P.W.1 Balu did not occur. On behalf of the appellant, in cross examination on behalf of the accused no.1 Ramchandra, this witness P.W.3 Kashinath Apar has denied the suggestion that P.W.1 Balu, his wife and others came in police station on 18/3/2003 and get recorded their statements. He, however, further states in his cross examination that he can not assign any reason why their statements were not recorded from 6th March, 2003 to 18th March, 2003 by investigating officer who carried out earlier investigation. At this juncture, we would like to observe that it was for the defence, to cross examine P.W.6, A.P.I., Kishor Meshram, who is examined at Exh.71 regarding this delay or reason for not recording the statement of P.W.1 Balu from the date of lodgement of report of P.W.1 Balu till 18th March, 2003 the date of recording the statement of P.W.1 Balu and his wife Jyoti. The fact remains that this delay for recording the statement of P.W.1 Balu does not enure to the benefit of the appellants. Apart from delay in recording the statement of P.W.1 Balu under section 161 of the Code of Criminal Procedure, in our view, there was no scope, in the case on hand, for P.W.1 Balu for concoction/manipulation or falsely implicating both the accused in the case on hand. We are making this observation on the background that the incident took place in the intervening night of 5th March, 2003 and 6th March, 2003. As per the substantive evidence of P.W.1 Balu, the incident of assault on deceased Shrikrishna took place at 11.00 p.m. in the night. The oral report was made to Walgaon Police Station on 6th March, 2003 which was reduced into writing by police officer – P.W.6 Meshram. We have seen the original oral report, from the file, reduced into writing by P.W.6 A.P.I., Kishor Meshram, who was on duty in the intervening night of 5th March 2003 and 6th March, 2003 (Exh.37). We have also seen the printed FIR (Exh.72) which records the date as 6th March, 2003 and time of recording the FIR as 00.30 hours. The evidence of P.W.2 Dr. Rohit Ganediwal, which we have made reference in the foregoing paragraphs, shows that three injured viz. Shrikrishna, Balu and Jyoti were referred for examination. Shrikrishna was examined as per the evidence of P.W.2 Dr. Rohit and certificate (Exh.44) at 2.00 a.m. on 6th March, 2003. Balu (P.W.1) was examined as per the substantive evidence of P.W.2 Dr. Rohit and certificate (Exh.45) at 9.15 a.m. on 6.3.2003 and Jyoti wife of P.W.1 Balu was examined as per the evidence of P.W.2 Dr. Rohit and certificate (Exh. 46) at 9.10. a.m. on 6th March, 2003. Thus, from the evidence brought on record, we have seen lodgement of FIR by P.W.1 Balu within the shortest possible time i.e. within two hours from the incident. In substance, P.W.1 Balu is not only an eye witness but it is a proved fact on record that he is an injured witness. His status as eye witness, elevated him from the category of eye witness to the status of injured eye witness in the occurrence. With this elevated status of injured eye witness, we have considered the evidence of P.W.1 Balu. His status as eye witness, elevated him from the category of eye witness to the status of injured eye witness in the occurrence. With this elevated status of injured eye witness, we have considered the evidence of P.W.1 Balu. We are of the firm view that he had witnessed the incident and his evidence is of sterling quality and reliable to sustain the conviction for the offence punishable under section 302 of the Indian Penal Code. 10. The evidence of P.W.1 Balu – an injured eye witness, has been corroborated by substantive evidence of P.W.2 Dr. Rohit, certificate Ehx.44 in relation to injuries sustained by Shrikrishna, evidence of P.W.4 Dr. Kishor and post mortem report (Exh.54) as well as opinion Exh. 55, the medical evidence. It is further strengthen by the recovery of gupti, the weapon used in the incident by appellant no.1 Ramchandra. 11. Mr. Badar, the learned counsel for the appellant, in support of his submission, relied upon the Judgment of the Hon'ble Supreme Court reported in 2005 ALL MR (Cri) SC S.N.39 in the matter of Hem Raj & others vs. State of Haryana, therein on the background facts brought before the Hon'ble Supreme Court, it is held that no independent witness, though available, was examined and not even an explanation was sought to be given for not examining such witness, is a serious infirmity in the prosecution case. Having regard to the undisputed facts of that case, it is also observed by the Hon'ble Supreme Court that non examination of an independent witness by itself, may not give rise to adverse inference against the prosecution. However, when the evidence of the alleged eye witnesses raised serious doubt on the point of their presence at the time of actual occurrence, unexplained omission about examination of an independent witness would assume significance. The facts, in the case on hand, are clearly distinguishable. The occurrence, in the case on hand, took place at 11 p.m. We have considered and convinced regarding the status of P.W.1 as injured witness and thus, the ratio of this Judgment does not help to the appellant. Another judgment for drawing adverse inference against the prosecution, has been pointed out to us by the learned counsel Mr. Badar for the appellants. Mr. Another judgment for drawing adverse inference against the prosecution, has been pointed out to us by the learned counsel Mr. Badar for the appellants. Mr. Badar, the learned counsel, on the point of delay in recording the statement of P.W.1 Balu relied on the Judgment of Division bench of this Court reported in 2007 ALL MR (Cri) 3076 in the matter of Ganesh Godruji Uikey and another vs. State of Maharashtra. There this Court held that inordinate and unexplained delay caused in recording the statement of the witness is fatal to the case of the prosecution and renders the testimony of the witness unreliable and untrustworthy. In the case on hand in foregoing paras, we have considered the facts and alleged delayed recording the statement of P.W.1 Balu. This Judgment and ratio therein does not apply to the facts of the present case. 12. Mr. Badar, the learned counsel submitted that the offence, if any, cannot be said to be punishable under section 302 of the Indian Penal Code. According to him, the fact of the present case attracts exception (1) of Section 300 of the Indian Penal Code. In other words, according to Mr. Badar, the learned counsel for the appellant no.1 had lost power of self control because of grave and sudden provocation. In support of this submission, Mr. Badar, the learned counsel relied upon the Judgment of the learned Division Bench of this Court in the matter of Baba @ Gulam Raza Hussain Hadi Tapti vs. State of Maharashtra and another reported in 2000(1) Mh.L.J., 164. In the case of Baba, this Court observed that the deceased used filthy language and abused the accused concerning female members of the family suggesting to ask his daughter or wife or mother to do prostitution. On this background, the appellant therein who was convicted under section 304 (1) and sentenced to ten years rigorous imprisonment and fine of Rs. 20,000/-. In appeal, this Court altered the sentence reducing from 10 years to 8 years rigorous imprisonment maintaining the conviction of the appellant therein for the offence under section 304(1) of the Indian Penal Code and maintaining fine imposed by the trial Court. Mr. Badar pointed out to para no.46 of the Judgment of the trial court on the point of advanced age of both the appellants. Mr. Badar pointed out to para no.46 of the Judgment of the trial court on the point of advanced age of both the appellants. The learned trial Court has considered that both the accused i.e. both the appellants were 45 and 50 years old and especially the age of accused no.2/appellant no.2 was 60 years. The learned trial Judge considering the gravity of the offence reached to the conclusion that minimum punishment for imprisonment for life needs to be inflicted upon the appellants. The learned APP points out that the appellant no.2 is no more. The offence alleged is serious and there is no sudden and grave provocation. 13. In view of the submissions of Mr. Badar, learned counsel for the appellant, we feel it appropriate to refer to the Judgment of the Supreme Court in the matter of K.M.Nanavati vs. State of Maharashtra, reported in AIR 1962 SC, page 605 in which it is held that the following conditions must be complied with for the application of Exception 1 to Section 300 IPC: 1) the deceased must have given provocation to the accused, 2) the provocation must be grave, 3) the provocation must be sudden, 4) the offender, by reason of the said provocation, shall have been deprived of his power of self control, 5) he should have killed the deceased during the continuance of the deprivation of the power of self control, and 6) the offender must have caused the death of the person who gave the provocation or that of any other person by mistake or accident. In the case on hand, elopement of Indira w/o deceased Shrikrishna with Santosh son of appellant no.1 Ramchandra had taken place six months prior to the occurrence. Moreover, the actual words of abuses given by deceased Shrikrishna, have not been brought on record. In the facts of the present case, we are of the firm view that exception 1 of section 300 of the Indian Penal Code does not apply. 14. In the facts and material brought on record in the case on hand, in our opinion, clause thirdly of section 300 applies. It would be appropriate at this stage to refer to the Judgment of the Supreme Court in the matter of Thangaiya vs. State of Tamil Nadu (2005) 9 SCC, page 6 50. 14. In the facts and material brought on record in the case on hand, in our opinion, clause thirdly of section 300 applies. It would be appropriate at this stage to refer to the Judgment of the Supreme Court in the matter of Thangaiya vs. State of Tamil Nadu (2005) 9 SCC, page 6 50. There, the Hon'ble Supreme Court was considering the fine distinction between Section 299 and Section 300 IPC. The Hon'ble Supreme Court quoted the observations of earlier Judgment of the Supreme Court in the case of Virsa Singh vs. State of Punjab, reported in AIR 1958 SC, page 465. Paragraphs 17 and 18 are relevant which we reproduce herein below. “ 17. These observations of Vivian Bose, J, have become locus classicus. The test laid down by Virsa Singh v. State of Punjab for the applicability of clause 'Thirdly' is now ingrained in our legal system and has become part of the rule of law. Under clause 'Thirdly' of Section 300 IPC, culpable homicide is murder, if both the following conditions are satisfied: i.e. (a) that the act which causes death is done with the intention of causing death or is done with the intention of causing a bodily injury; and (b) that the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. It must be proved that there was an intention to inflict that particular bodily injury which, in the ordinary course of nature, was sufficient to cause death viz. that the injury found to be present was the injury that was intended to be inflicted. 18. Thus, according to the rule laid down in Virsa Singh case even if the intention of the accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be murder. Illustration (c) appended to Section 300 clearly brings out this point.” 15. In the result, appeal of appellant no.1 Ramchandra stands dismissed confirming the conviction and sentence rendered by the learned trial Judge. The appeal of appellant no.2 Fulsing stands abated. ORDERED ACCORDINGLY.