Judgment : NARESH H. PATIL, J. 1. Original accused Nos. 1 to 3, namely, Ganesh s/o Nagnath Boinwad, Datta s/o Kanba Boinwad and Nagnath s/o Kanba Boinwad were charged alongwith other accused persons, on 2nd April, 2009 in Sessions Case No.118 of 2008. By Judgment and order dated 14th May, 2010 passed by the Additional Sessions Judge, Nanded, all these three Appellants were convicted for an offence punishable under Section 302 read with Section 34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.1,000/-each, and in default further R.I. for six months each. Rest of the original accused persons, who were charged alongwith these three Appellants, were acquitted. Criminal Appeal No.187 of 2012 is separately preferred by Appellant Ganesh Nagnath Boinwad and Criminal Appeal No.358 of 2010 is preferred by remaining two Appellants, namely, Datta s/o Kanba Boinwad and Nagnath s/o Kanba Boinwad. Both the Criminal Appeals are being disposed of by this common Judgment and Order. 2. In all, 14 persons were charged for committing murder of deceased Ramkishan Jalba Jadhav, on 14th April, 2008. 3. The prosecution case, as narrated by the eye witnesses to the incident, before the Court, reveals that three days prior to the incident, the deceased was sleeping outside the house on a cot. Accused Ganesh Nagnath Boinwad was riding his motorcycle, which struck the cot on which the deceased was sleeping. On that count, there was exchange of hot words in between the deceased and accused Ganesh. On 14th April, 2008, in the morning hours, at about 7.00 to 7.15 am, accused No.1 Ganesh Nagnath Boinwad, accused No.2 Datta Kanba Boinwad and accused No.3 Nagnath Kanba Boinwad, armed with sticks, came to the house of the deceased. The sticks are referred as "Badga". The Appellants came in front of the house of the deceased. They started shouting. They challenged the deceased, saying that "Ramkishan come out of the house, and let us see who has how much strength." They started giving abuses. Wife and daughter of the deceased were standing at the doorsteps of the house. They tried to prohibit the accused persons and even the deceased from coming out of the house. The brother of the deceased intervened and told the accused, not to quarrel as there was marriage ceremony in his house. Wife and daughter of the deceased were standing at the doorsteps of the house. They tried to prohibit the accused persons and even the deceased from coming out of the house. The brother of the deceased intervened and told the accused, not to quarrel as there was marriage ceremony in his house. The Appellants went back saying that they will see them later on. Thereafter at about 9.00 to 9.30 am the deceased went to Bhokar and came back at about 4.00 to 4.30 pm At about 7.00 to 7.15 pm, the Appellants Ganesh Nagnath Boinwad, Nagnath Kanba Boinwad and Datta Kanba Boinwad, again came to the house of the deceased. They were having "Badga" (sticks) in their hands and they challenged the deceased Ramkishan to come out of his house, as they wanted to finalize the matter. The deceased was taking food in the house. The relatives of the deceased were standing at the doorsteps of the house. The deceased came out of the house. 4. At this time, the prosecution case suggest that Appellant Ganesh Nagnath Boinwad caught hold the deceased and gave a blow with a knife to right side of the back portion of the body of the deceased. The blow was so forceful that deceased started screaming. Hearing the screams, his son rushed towards the deceased. He was obstructed by other accused persons. Deceased fell down. The accused persons thereafter ran away. The deceased was tried to be given water, but he was not in a position to drink the water. In auto rickshaw, the deceased was taken to the hospital at Bhokar, by his cousin brother. Doctor examined and opined that Ramkishan was dead. Phone call was made to Tamsa Police Station. P.S.I. came to the hospital after about one to one and half hours. He recorded the statements of the relatives of the deceased. Statement of PW2 Ravaji Jadhav was recorded (Exhibit 39). Postmortem of the dead body was conducted. Funeral was performed. Thereafter the police started investigation, they recorded statements of the witnesses. Police drew panchnamas, conducted the investigation and after completing the investigation, filed chargesheet against 14 persons. 5. The Appellants denied the charges and came to be tried. 6. The prosecution evidence is based on the eye witness account. We will deal with the evidence of the eye witnesses. 7. PW1 is Panditrao Bhale. Police drew panchnamas, conducted the investigation and after completing the investigation, filed chargesheet against 14 persons. 5. The Appellants denied the charges and came to be tried. 6. The prosecution evidence is based on the eye witness account. We will deal with the evidence of the eye witnesses. 7. PW1 is Panditrao Bhale. He is a panch of the spot of incident. The police seized some articles on the spot, blood with soil, blood stains on the wall. Signature of this witness was obtained on the spot panchnama. This witness has given location of house of the deceased. He has identified the articles which were lying on the spot. 8. PW2 Ravaji Ramkishan Jadhav is an eye witness, who is son of deceased. He has narrated the incident before the Court. He has blamed the Appellants for causing injuries to the deceased. He has specifically attributed the assault by Appellant Ganesh, with the help of knife. He deposed that other two accused persons were also having sticks in their hands and they assaulted the deceased, according to the witness. These accused persons had come to the house of the deceased and had challenged him to come out of the house. The witness tried to intervene but the accused persons assaulted the deceased, due to which, deceased succumbed to the injuries suffered by him. 9. In the cross-examination this witness PW2 deposed that he is from Mali community. He was asked as to whether his mother slapped Ganesh at about 6.00 am on the day of incident, to which he claimed ignorance. His statement under Section 164 of the Code of Criminal Procedure was recorded. Contradiction is brought on record in the evidence of this witness in respect of statement that his father was taking meal at about 7.00 pm in his house. He admitted before the Court that there were cases pending against the deceased under Prohibition Act, which were lodged between the period from the year 1987 to 2008. Prior to the incident, there were 23 cases lodged against his father. Case was registered against the witness, bearing RCC No.55 of 1999. P.S.I. Birla once had seized illicit liquor which was being carried out in auto rickshaw of the family of the deceased. It was suggested that accused Datta was member of Tanta Mukti Samiti of the village. Prior to the incident, there were 23 cases lodged against his father. Case was registered against the witness, bearing RCC No.55 of 1999. P.S.I. Birla once had seized illicit liquor which was being carried out in auto rickshaw of the family of the deceased. It was suggested that accused Datta was member of Tanta Mukti Samiti of the village. The witness further deposed that there were blood stains on the clothes of Appellant Datta (due to the injuries suffered by the father of the witness). 10. Para 12 of the deposition of this witness reads as under: "12. It did not happen that the blow received by my father had not kept the knife struck into his back after receiving the blow, the knife was removed back. My father had fallen down after receiving a blow with a knife. It did happen that my father sustained a fist blow across his face and thereby sustained a bleeding injury and thereby had fallen down in front of our house. My father had fallen down, 5 minutes after receiving the blow with a knife. It is not correct to say that, Ganesh never inflicted a blow with a knife on the back of my father. My father was being assaulted with Badga and sticks on his back, legs, head. My father had sustained contusion on his head, back and legs. Badga means a wooden log. My father had sustained injury in the size of Badga. The incident was going on for about five minutes. The persons from my house had not made efforts to intervene in the incident." 11. In the evidence of this witness, omission is brought on record in respect of availability of electricity supply at the relevant time. 12. PW3 is Kanopatra w/o Bandu Raut. She is daughter of deceased Ramkishan Jalba Jadhav. She also narrates the same events in respect of the incident in question. She blamed the accused persons for assaulting her father and attributed specific role to Appellant Ganesh, who caught hold of her father and thereafter gave blow with a knife on the back of her father. Due to the blow given to her father, he sustained bleeding injuries. Other accused persons also assaulted the deceased with "Badga" (sticks).” 13. In the cross-examination, the witness deposed that Gajanan is living separately from her father. Due to the blow given to her father, he sustained bleeding injuries. Other accused persons also assaulted the deceased with "Badga" (sticks).” 13. In the cross-examination, the witness deposed that Gajanan is living separately from her father. Her father had lodged complaint about the incident occurred on previous night wherein he stated that accused Ganesh gave dash to the cot of deceased, by motorcycle. The witness is not aware whether the complaint was lodged in the police station regarding the threats given to her father. She further deposed that her father was repeatedly assaulted with sticks but she could not see whether there were injury marks of the sticks on the person of her father, neither she could see the parts of the body of her father on which assault by sticks was visible. The witness stated that barring the said incident, their relations with Ganesh and other accused were not strained. Suggestion was given to this witness that while PW2 Ravaji was assaulting accused Datta, accused Ganesh sustained injuries to his left hand. The witness claims ignorance in respect of injury caused to palm of Ganesh, during the said incident. Para 11 of the deposition of this witness reads as under: "11. Prior to the episode of motorcycle, there was no complaint against each other, and our relations were cordial. The alleged incident took place abruptly and unexpectedly. In the alleged incident my father had sustained bleeding injuries to right side on his back. He lost blood sufficiently. My father had fallen down due to the injury and blood was oozing out from the wound. I have not seen as to whether Ganesh had sustained injury to his left hand and blood was oozing out from the said wound. It is not correct to say that, I am purposed hiding this fact by my such answers." 14. PW4 Sadashiv Jalba Jadhav is brother of deceased Ramkishan. He too is eye witness to the incident. He blames Ganesh for giving blow with knife on the back of the deceased, due to which deceased died. The other two accused/ Appellants assaulted deceased with sticks. The witness stated that all the accused persons beat his brother with sticks. He deposed before the Court that incident was going on for 5 to 10 minutes. He blames Ganesh for giving blow with knife on the back of the deceased, due to which deceased died. The other two accused/ Appellants assaulted deceased with sticks. The witness stated that all the accused persons beat his brother with sticks. He deposed before the Court that incident was going on for 5 to 10 minutes. He had seen the hands of Ganesh but could not see that Ganesh had sustained injury to his left palm. 15. PW5 is Gajanan Sadashiv Jadhav. Deceased Ramkishan was his uncle. He too supported the prosecution case and attributed the assault with knife to Ganesh. He stated that other accused persons assaulted the deceased with sticks, including the acquitted accused persons. 16. The defence submits that this witness had not seen the incident. He was doing job for fifteen years in Mumbai. He had come to the village after the incident took place, therefore his evidence cannot be relied upon as eye witness. 17. PW6 is Savitrabai w/o Rajeshwar Jomde. She is daughter of deceased Ramkishan. She had come to Pimpalgaon at about 5.00 pm for the purpose of marriage ceremony of her cousin brother. She has witnessed the incident of assault with knife by Ganesh, on her father. She is eye witness to the incident. She also supports the prosecution case and narrates the incident in the same manner in which the earlier prosecution witnesses have narrated. 18. PW7 is Achyut Sonbarao Bhale, who is declared hostile by the prosecution. PW8 Eknath Gangadharrao is a panch of seizure of clothes. 19. PW9 Vijay Pantoji was police head constable, attached to Tamsa police station. He took the dead body for the purpose of post mortem. He drew seizure panchnama of the clothes of the deceased, Exhibit 66. He identified the Articles 20, 21 and 22 before the Court. 20. PW10 is Hamja Bangisab. He is declared hostile by the prosecution. PW11 Balu Karpe is auto driver. He was panch in respect of recovery of sticks at the instane of the acquitted accused persons. 21. PW12 is Dr. Hiraji Munjaji Alane. He conducted post mortem on the dead body of Ramkishan during the period between 5.15 pm to 6.15 pm, on 15th April, 2008. He is declared hostile by the prosecution. PW11 Balu Karpe is auto driver. He was panch in respect of recovery of sticks at the instane of the acquitted accused persons. 21. PW12 is Dr. Hiraji Munjaji Alane. He conducted post mortem on the dead body of Ramkishan during the period between 5.15 pm to 6.15 pm, on 15th April, 2008. In column No.17 of the post mortem report, the witness described the injuries as under: "Penetrated wound one and half X 1/2 X two and half inch on back side at 8th and 9th rib, costal space medial to inferior angle of right scapula, within 24 hours by sharp weapon. Brownish red blood oozing from wound." 22. The doctor described the injuries in Para 4 of the evidence as under: "Ribs-Back side 8th rib costal region teared. Lungs-Both lungs collapsed. Heart-Right and left ventricle empty and the heart muscles contracted. Inferior vena cava punctured due to stab injury by back side." 23. According to the medical officer, the said injury was sufficient to cause death. The medical officer further deposed that there was no fracture of the ribs of the deceased. Said injury cannot be inflicted by standing opposite to each other. The medical officer opined that deceased died due to "punctured wound to inferior vena cava." 24. PW13 is Anup Wankhede. He was Junior Engineer. He was examined in respect of availability of electricity supply at the time of incident. He stated that there was load shedding at Pimpalgaon from 3.00 pm to 7.00 pm and electricity supply was available from 7.01 pm onwards. 25. PW14 is A.S.I. Baliram Wagatkar and PW15 is Sunil Birla, the investigating officer. 26. Shri. Joydeep Chatterji, learned counsel appearing for Appellant Ganesh Nagnath Boinwad, in Criminal Appeal No.187 of 2012, submitted that injury suffered by Ganesh to his palm, has not been mentioned by the prosecution witnesses, neither the prosecution has come out with any explanation in respect of the said injury. All the eye witnesses are highly interested and closely related to the deceased. The prosecution is suppressing genesis of the case, which should be considered as an adverse circumstance against the prosecution. The deceased died due to single injury, which was not on the vital part i.e. right portion of the back of the deceased. All the eye witnesses are highly interested and closely related to the deceased. The prosecution is suppressing genesis of the case, which should be considered as an adverse circumstance against the prosecution. The deceased died due to single injury, which was not on the vital part i.e. right portion of the back of the deceased. The incident took place in a sudden heat of exchange of words, hurling of abuses and quarrel. The incident was not premeditated or preplanned. In case the prosecution case is assumed to be true, the Appellant Ganesh cannot be convicted for an offence punishable under Section 302 of the Indian Penal Code. There was no motive for the Appellant Ganesh to commit murder of the deceased. 27. Shri. Satej Jadhav, learned counsel appearing on behalf of the Appellants Datta Kanba Boinwad and Nagnath Kanba Boinwad, in Criminal Appeal No.358 of 2010, submitted that no specific overtacts are attributed to the Appellants. They are said to have used sticks while assaulting the deceased, but if the medical evidence is considered, it reveals that the deceased did not suffer single injury of sticks. Reference to 'hemorrhagic spot' mentioned by the medical officer, does not show any corresponding injury on the person of the deceased. There was no injury of stick or any other injury on the person of the deceased except the injury of knife. In view of the availability of the medical evidence, the evidence of the eye witnesses has to be disbelieved. The prosecution has failed to establish its case for convicting the Appellants for the offence punishable under Section 302 of the Indian Penal Code. The learned counsel further submitted that on the same set of allegations and the evidence, other accused persons, who had allegedly used sticks in the assault, were acquitted by the trial Court. By applying the principles of 'parity', the Appellants too deserve the same treatment. The prosecution witnesses are exaggerating the role attributed to the Appellants. The evidence of defence witness, has not been taken into consideration by the trial Court. The accused have made out a probable case. In absence of any explanation to the injuries caused to the accused, adverse inference is required to be drawn. Injury caused to the accused, was not self inflicted injury. The said injury suffered by the accused, must have been caused during the scuffle. The accused have made out a probable case. In absence of any explanation to the injuries caused to the accused, adverse inference is required to be drawn. Injury caused to the accused, was not self inflicted injury. The said injury suffered by the accused, must have been caused during the scuffle. The injury suffered by the accused was incise wound, therefore, the prosecution should be called upon to explain the same. 28. In support of their submissions, the learned counsel appearing for the Appellants, placed reliance on the following reported Judgments: (1) Lakshmi Singh and others vs. State of Bihar, A.I.R. 1976 S.C., 2263(1), (2) Ramesh Krishna Madhusudan Nayar vs. State of Maharashtra, 2008 A.I.R. S.C.W., 370, (3) Golla Yelugu Govindu vs. State of A.P., 2008 A.I.R. S.C.W., 2541, (4) A. Maharaju vs. State of Tamil Nadu, 2008 A.I.R. S.C.W., 7580. 29. The learned A.P.P. has placed reliance on the Judgment reported in the case of VirsaSingh vs. State of Punjab, A.I.R. 1958 S.C., 405 (V 45 C 71). 30. We have perused the original record, evidence of the witnesses, findings reached by the trial Court and the reported Judgments cited before us. 31. From the medical evidence and the narration of the eye witnesses, we find that the deceased died due to single injury inflicted by knife, on the right portion of back of the deceased. He collapsed and succumbed to the injuries. The eye witnesses have given an account of the incident, near-about in similar manner. In substance, the allegation is that on the day of incident, in the morning hours the accused had come to the house of the deceased. There exchanged abuses. They went back and thereafter they came back in the evening. They challenged Ramkishan to come out. His family members were there. There was marriage ceremony in the family. The relatives of the deceased tried to avoid the incident but unfortunately the deceased came out. No sooner the deceased came out of the house, hot exchanges of words and abuses took place between them and it is suggested that accused Ganesh pressed neck of the deceased and pushed the deceased towards wall and assaulted with knife, with which he was armed, on the right portion of the back of the deceased. 32. No sooner the deceased came out of the house, hot exchanges of words and abuses took place between them and it is suggested that accused Ganesh pressed neck of the deceased and pushed the deceased towards wall and assaulted with knife, with which he was armed, on the right portion of the back of the deceased. 32. Though the prosecution witnesses stated that other Appellants assaulted the deceased with the help of "Badga" (sticks), but from the medical evidence, nothing of that sort is noticed on the person of the deceased. No injuries are noticed on the person of the deceased, which could be caused by the sticks. Considering the prosecution evidence in respect of role attributed to other two accused persons, who, according to them, used sticks in the assault, we do find that the evidence does not inspire confidence. 33. After scrutinizing the evidence of the medical officer, post mortem report, we are convinced to observe that deceased suffered one injury i.e. injury by knife which was inflicted by the accused Ganesh Nagnath Boinwad. We are not convinced to accept the prosecution theory that other accused persons had preplanned assault on the deceased along with Ganesh, to commit his murder or to cause such bodily injuries, which would ultimately result in death of the deceased. The motive is not that strong enough, to accept the prosecution case that the Appellants had intended to commit the alleged act. From the evidence on record, we do not find that the Appellant Ganesh intended to commit murder of deceased. We have scanned the material in respect of human anatomy to ascertain the location of "inferior vena cava", which vein goes to the heart from the space below liver. Due to this injury, which was in between 8th ribs costal region, both the lungs got affected and collapsed. The Defence Witness No.1 Dr. Gopikrishna Potaji has stated that he examined accused Ganesh. The witness examined him on 15th April, 2008. The witness was attached to Primary Health Center Tamsa. He noticed incise wound over palmer surface of left hand of size "4 c.m. X 0.5 c.m. X 0.5 c.m." 34. The police recovered knife at the instance of the accused Ganesh. C.A. Report is also on record. The witness examined him on 15th April, 2008. The witness was attached to Primary Health Center Tamsa. He noticed incise wound over palmer surface of left hand of size "4 c.m. X 0.5 c.m. X 0.5 c.m." 34. The police recovered knife at the instance of the accused Ganesh. C.A. Report is also on record. From the said material, the oral testimony of the witnesses and the evidence of the medical officer, the prosecution case cannot be discarded that Appellant Ganesh along with other Appellants, had gone to the house of the deceased, challenged him to come out and when he came out, assaulted him in front of the eye witnesses. But the question is, whether the other two Appellants, namely, Datta Kanba Boinwad and Nagnath Kanba Boinwad, Appellants in Criminal Appeal No.358 of 2010, had intended to commit the offence along with the Appellant Ganesh, and in furtherance of the same, assaulted the deceased with sticks, as narrated by the prosecution witnesses. On this point, we find that prosecution witnesses have exaggerated the role attributed to the other two Appellants than Ganesh. The medical evidence goes contrary to the evidence of the eye witnesses, in respect of the role attributed to the other two Appellants, namely, Datta Kanba Boinwad and Nagnath Kanba Boinwad. We are therefore, not convinced to hold them guilty for the offences for which they were charged. It is noticeable to observe that on the same set of allegations and circumstances, other accused persons were acquitted by the trial Court. We do not find any substantial reason not to grant same benefit to these two Appellants, namely, Datta Kanba Boinwad and Nagnath Kanba Boinwad. There is lack of evidence to sustain the order of conviction passed against these two Appellants, namely, Datta Kanba Boinwad and Nagnath Kanba Boinwad. 35. The next question is, as to what offence Appellant Ganesh Nagnath Boinwad (Appellant in Criminal Appeal No.187 of 2012) has committed. After considering the evidence on record, we do find that in the facts of the case, accused Ganesh never intended to commit murder of deceased Ramkishan. But the fact remains that he was armed with a knife and he assaulted the deceased on the non-vital part of the body, i.e. back of the deceased. It was a single blow. Unfortunately it touched vital veins, the lungs of the deceased collapsed and due to which he died. But the fact remains that he was armed with a knife and he assaulted the deceased on the non-vital part of the body, i.e. back of the deceased. It was a single blow. Unfortunately it touched vital veins, the lungs of the deceased collapsed and due to which he died. The accused Ganesh ought to have known the consequences of inflicting a stab injury on the person of the deceased. 36. We have taken into consideration the past conduct and relations between these parties. We do not find that there was any serious enmity for Ganesh to commit murder of deceased Ramkishan. Taking into consideration the evidence on record in its entirety, we are convinced to hold that Appellant Ganesh cannot be convicted and sentenced for an offence punishable under Section 302 of the Indian Penal Code. His conviction and sentence needs to be altered, for an offence punishable under Section 304 Part II of the Indian Penal Code. Learned counsel Shri. Joydeep Chatterji had also argued for altering this sentence, in case the Court does not uphold the submissions of the defence to acquit the accused person Ganesh. We are in agreement with the learned counsel Shri. Joydeep Chatterji in respect of acceptance of altering the conviction and sentence of the Appellant Ganesh, from the offence punishable under Section 302 of the Indian Penal Code, to the offence punishable under Section 304 Part II of the Indian Penal Code. 37. Hence we pass following order in Criminal Appeal No.358 of 2010: ORDER The Appeal of appellants Datta Kanba Boinwad and Nagnath Kanba Boinwad is allowed. The Judgment and order of Additional Sessions Judge, Nanded delivered in Sessions Case No.118/2008 convicting and sentencing these two appellants for offence punishable under Section 302 r.w. 34 of I.P.C. is hereby quashed and set aside. Both the appellants are acquitted of this offence. They are to be released forthwith. The fine amount if deposited by appellants, is to be refunded to them. 38. We pass following order in Criminal Appeal No.187 of 2012: ORDER The Appeal is partly allowed. Both the appellants are acquitted of this offence. They are to be released forthwith. The fine amount if deposited by appellants, is to be refunded to them. 38. We pass following order in Criminal Appeal No.187 of 2012: ORDER The Appeal is partly allowed. The Judgment and order of Additional Sessions Judge, Nanded delivered in Sessions Case No.118/2008 convicting and sentenced the appellant for offence punishable under Section 302 r.w. 34 of I.P.C. is hereby set aside and the appellant is acquitted of the offence punishable under Section 302 r.w. 34 of I.P.C. His conviction is altered to the offence punishable under Section 304 Part II of the I.P.C. and the appellant is sentenced to suffer Rigorous imprisonment of 7 years and he is also sentenced to pay fine of Rs.20,000/-(Rupees Twenty Thousand). In default of payment of fine, he is to further undergo Rigorous imprisonment for one year. If the fine amount is deposited, the amount is to be paid to the widow of deceased as compensation under Section 357 of Criminal Procedure Code. If the widow is not alive, then the compensation is to be equally distributed to next of the kin of the deceased. Appellant is entitled to set-off in the substantive sentence of imprisonment in respect of period already undergone.