Judgment : V. K. TAHILRAMANI, J. The Appellant/Original Accused has preferred this Appeal against the Judgment and order dated 20th April, 2006, passed by the learned 5th Ad hoc Additional Sessions Judge, Mumbai in Sessions Case No. 837 of 2005. By the said Judgment and order, the learned Sessions Judge convicted the Appellant for the offence under section 302 of Indian Penal Code and sentenced him to suffer life imprisonment and to pay fine of Rs. 1000/ (Rs. One Thousand only) in default R.I. for six months. 2. The prosecution case, briefly stated, is as under : The complainant P.W.1 Sandip Therade was the elder brother of deceased Sudhakar. Deceased Sudhakar and his brother Sandip Therade were residing in the same area. Their sister Sugandha was residing nearby in Subhash Nagar. P.W. 2 Sandip Gavade was the husband of their sister Sugandha. The Appellant was known to the witnesses. On 28th July, 2005, it was Sudhakar's birthday. The incident took place at about 10.00 to 10.15 p.m. At about 8.00 p.m. on that day, P.W.1 Sandip Therade went to the house of his brother as it was birthday of Sudhakar Therade. They sat there for some time then Sandip told Sudhakar that he will go to the house of his sister Sugandha. He then went to the house of Sugandha. Sugandha's husband P.W.2 Gavade was present in the house. While P.W.1 Sandip Therade and P.W.2 Sandip Gavade were chitchatting at about 9.45 p.m. Sudhakar came to the house of his sister Sugandha. Sudhakar told P.W.1 Sandip and P.W.2 Gavade to come to his house alongwith him. Thereafter all of them started going towards his house. Sudhakar was residing in Sundar Nagar. When they reached near Chawl No. 11 in Sunder Nagar, they saw a quarrel was going on between P.W.3 Sham and the Appellant. When Sudhakar went to pacify the quarrel which was going on in between Sham and the Appellant, as soon as Sudhakar intervened in the quarrel the Appellant suddenly took out a dagger and inflicted blows on left side of chest of Sudhakar. Sudhakar sustained bleeding injury on his chest. Sudhakar shouted and fell on the ground. He became unconcious. The Appellant ran away. Then P.W.1 Sandip and P.W.2 Gavade put Sudhakar in an auto rickshaw and took him to Holly Spirit Hospital. Doctor examined him and declared him dead. Sudhakar sustained bleeding injury on his chest. Sudhakar shouted and fell on the ground. He became unconcious. The Appellant ran away. Then P.W.1 Sandip and P.W.2 Gavade put Sudhakar in an auto rickshaw and took him to Holly Spirit Hospital. Doctor examined him and declared him dead. Then P.W.1 Sandip lodged First Information Report (Exhibit-8). Thereafter the investigation commenced. The dead body of Sudhakar was sent for post mortem. P.W.9 Dr. Kachare performed post-mortem on the dead body of Sudhakar. On external examination of the dead body he found following injuries : "i. Incised wound at anterior of left chest below left nipple - horizontal size of 3 cm x 1 cm cavity deep, reddish both angle acute. ii Incised wound in left mid axillary line 5 cm below left nipple, vertical size of 1 cm x ¼ cm x cavity deep reddish angles acute. iii. CLW near nipple size of ¼ cm x 0.5 cm x 1 cm reddish. iv. Abrasion over right chest near right nipple 1 cm x 1 cm reddish. He found following internal injuries : A. Thorax - walls, ribs, cartilages - left sides, 4th and 5th ribs fracture. B. Pleura - ruptured at left side haemorrhage are seen. E. Left lung - incise wound at lingula 2 cm x 1 cm muscle deep reddish. F. Pericardium - ruptured. G. Heart - ruptured incised wound at anterior wall 1.5 cm x 1 cm x cavity deep reddish. In his opinion the cause of death was haemorrhage and shock due to incise wounds (unnatural). According to him the above injuries are sufficient to cause death of the deceased in ordinary course of nature and the injuries mentioned above are possible due to infliction of blow by knife like Art. H. The injuries were on the vital part of the deceased. 3. The Appellant was arrested on 29th July, 2005 i.e. on the next day. During the course of investigation, blood stained clothes and the weapon i.e. Article-"H" came to be recovered at the instance of the Appellant. These articles were sent to the C.A. After completion of investigation, charge-sheet came to be filed. 4. Charge came to be framed against the Appellant under section 302 of the Indian Penal Code. The Appellant pleaded not guilty to the said charge and claimed to be tried. His defence is that of total denial and false implication. These articles were sent to the C.A. After completion of investigation, charge-sheet came to be filed. 4. Charge came to be framed against the Appellant under section 302 of the Indian Penal Code. The Appellant pleaded not guilty to the said charge and claimed to be tried. His defence is that of total denial and false implication. After going through the evidence adduced in this case, the learned Sessions Judge has rightly convicted and sentenced the Appellant as stated in paragraph one above, hence, this Appeal. 5. We have heard Mr. Prosper D'souza, the learned advocate appointed for the Appellant and the learned A.P.P. for the Respondent-State. After giving our anxious consideration to the facts and circumstances of the case, arguments advanced by the learned Advocate for the parties, the Judgment delivered by the learned Sessions Judge and the evidence on record, for the reasons stated herein below, we are of the opinion that the Appellant stabbed Sudhakar in chest with dagger and caused his death. 6. The conviction is mainly based on the evidence of three witnesses i.e. P.W.1 Sandip Therade, P.W.2 Gavade and P.W.3 Sham. P.W.1 Sandip was the brother of the deceased. He is also the complainant in the present case. P.W.2 Gavade is the husband of sister of deceased. P.W.3 Sham is the witness with whom the Appellant was having a quarrel in which the deceased intervened and sustained injuries and died. P.W. 1 Sandip Therade has stated that deceased Sudhakar was his younger brother. He and Sudhakar was residing in the same area. He knew the accused persons. On 28th July, 2005, it was the birthday of deceased Sudhakar. The incident took place on 28th July, 2005, at about 10.00 to 10.15 p.m. On that day at about 8.00 p.m. P.W.1 Sandip went to the house of his brother as it was the birthday of Sudhakar. They sat there for some time then Sandip told Sudhakar that he will go to the house of his sister Sugandha, hence he went to the house of Sugandha. Sugandha's husband P.W.1 Gavade was in the house. While P.W.2 Gavade and P.W.1 Sandip sat chitchatting in the house, at about 9.45 p.m. Sudhakar came to the house of Sugandha. Sudhakar then told P.W.1 Sandip and P.W.2 Gavade to come to his house along with him. Sugandha's husband P.W.1 Gavade was in the house. While P.W.2 Gavade and P.W.1 Sandip sat chitchatting in the house, at about 9.45 p.m. Sudhakar came to the house of Sugandha. Sudhakar then told P.W.1 Sandip and P.W.2 Gavade to come to his house along with him. Therefore, this witness P.W.2 Gavade and deceased Sudhakar started going towards the house of Sudhakar. Sudhakar's house is situated in Sundar Nagar. When they reached near chawl No. 11 in Sunder Nagar, P.W.1 Sandip saw quarrel was going on between Sham and the Appellant. Sudhakar went to pacify the quarrel. When Sudhakar intervened in the quarrel the Appellant suddenly took out a dagger and inflicted blows with dagger on the left side of the chest of Sudhakar. Appellant inflicted two three blows with dagger on the chest of Sudhakar. The Appellant then ran away. P.W.2 Gavade has stated that in the night of 28th July, 2005 Sudhakar and P.W. 1 Sandip had come to his house. Thereafter, he, P.W.1 Sandip and deceased Sudhakar were going towards the house of Sudhakar in Sundar Nagar. When they reached near chawl No. 11, they saw quarrel was going on between the Appellant and P.W.3 Sham. When Sudhakar intervened, the Appellant took out a knife and inflicted blow with knife on the chest of Sudhakar. Sudhakar fell down. Thereafter they took Sudhakar to hospital. Doctor checked Sudhakar in the hospital and declared him dead. 7. P.W.3 Sham has stated that he knew the deceased Sudhakar. On the day of the incident quarrel was going on between him and the Appellant near chawl No. 11 in Sundar Nagar. They were abusing each other. That time deceased Sudhakar, P.W.1 Sandip and P.W.2 Gavade came there. Sudhakar tried to separate the Appellant and P.W.3 Sham. At that time, the Appellant inflicted blow by means of dagger on the chest of Sudhakar. The Appellant gave two to three blows with dagger on the chest of Sudhakar. Sudhakar fell down on the ground. Thereafter, Sudhakar was taken to the hospital. All the eye-witnesses have identified the Appellant as the person who assaulted Sudhakar with dagger on his chest. The distance from which P.W.1 Sandip Therade saw the incident was 4 to 5 feet and the distance from which P.W.2 Sandip Gavade saw the incident was 5 to 6 feet. Thereafter, Sudhakar was taken to the hospital. All the eye-witnesses have identified the Appellant as the person who assaulted Sudhakar with dagger on his chest. The distance from which P.W.1 Sandip Therade saw the incident was 4 to 5 feet and the distance from which P.W.2 Sandip Gavade saw the incident was 5 to 6 feet. In such case, as the Appellant was known to them there would be no question of mistaken identity. As far as PW.3 Sham is concerned, the Appellant was having quarrel with Sham. The quarrel was in relation to an amount of Rs. 200/- to 300/- to be paid by the Appellant to Sham. Thus, even as far as P.W.3 Sham is concerned, there can be no question of mistaken identity. 8. Prosecution is also relying on the evidence of recovery of blood stained clothes and blood stained weapon at the instance of the Appellant. Panch witness P.W.5 More has deposed on this aspect. The memorandum and panchanama are at Exhibits 16 and 17. These articles were sent to the C.A. As per the C.A. report Exhibit 29, the blood group found on these articles is "O" which is the blood group of the deceased. It is pertinent to note that the blood group of the accused is "A". This finding of blood stains of the group of the deceased on the clothes of the Appellant and on the weapon recovered at his instance is another piece of evidence which goes against him. 9. The learned Advocate for the Appellant submitted that the panch witness was known to P.W.1 Sandip who is the complainant in the present case. He submitted that in such case, the evidence of panch witness cannot be relied upon. It is noted that nothing further has been elicited in the cross-examination of the panch witness P.W.5 More so as to disbelieve his testimony except the fact that he knew the complainant. As far as this aspect is concerned, we may make a reference to section 100 of the Code of Criminal Procedure. It is noted that nothing further has been elicited in the cross-examination of the panch witness P.W.5 More so as to disbelieve his testimony except the fact that he knew the complainant. As far as this aspect is concerned, we may make a reference to section 100 of the Code of Criminal Procedure. Sub-section (4) of section 100 of Code of Criminal Procedure states that : "Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do." Thus, this section clearly states that the panch witness should be from the locality and only if no person is available from the locality or is willing to be the witness to a search, then panch from any other locality can be taken. As panch witness PW 5 More was a resident of the same locality in which the complainant was residing, he was bound to know the complainant. Thus, this fact by itself without anything more on record or any other material to show that he was under the thumb of police, would not affect the veracity of his evidence. Thus we find no merit in the submission. 10. Thereafter, the learned Advocate for the Appellant submitted that one Baba Shaikh was also involved in the quarrel between the Appellant and P.W.3 Sham. He submitted that Baba Shaikh has not been examined by the prosecution, this shows that the prosecution has tried to suppress the geneses of the crime. He further contended that non-examination of Baba Shaikh would be fatal to the prosecution case. As far as above contentions are concerned, it is clear from the evidence that the Appellant was having a quarrel with P.W.3 Sham. Assuming that he also had a quarrel with Baba Shaikh, one of the persons involved in the quarrel i.e. P.W.3 Sham has been examined. It is the quality of evidence which matters and not the quantity of the evidence. Assuming that he also had a quarrel with Baba Shaikh, one of the persons involved in the quarrel i.e. P.W.3 Sham has been examined. It is the quality of evidence which matters and not the quantity of the evidence. When the prosecution has examined one of the witnesses who is involved in the quarrel, non examination of Baba Shaikh would not at all be fatal to the prosecution case. 11. The learned Advocate for the Appellant thereafter submitted that the Appellant has been falsely implicated in this case. In order to base this contention, he has placed reliance on the evidence of P.W.7 Dr. Bothare who examined the deceased when he was brought to hospital. He submitted that the history was given to the doctor that some one has stabbed Sudhakar on the chest. He further submitted that the word someone shows that it was not known as to who actually assaulted the deceased. As far as this aspect is concerned, it is seen that the incident had occurred at 10.15 p.m. and the FIR has been lodged at 11.30 p.m. by P.W.1 Sandip. In the FIR, the Appellant has been named and the role played by the Appellant is stated in the FIR. The time gap between the incident and the FIR shows that the FIR is almost immediately registered. Thus, there would not have been any time for any concoction or false implication. As far as the history given to the doctor is concerned, it is evident that the patients brother would be severely disturbed, as the incident had occurred just 20 minutes before the patient was brought to the hospital. In such case, the endeavour of the brother of the patient would be to ensure that the patient would get immediate treatment and be saved and in such circumstances he would only give the bare details to the doctor and would not give detailed history of the incident. Thus, we find no merit in the submission. 12. Lastly, it was contended by the learned Advocate for the Appellant that the case would not fall under section 302 of Code of Criminal Procedure but it would fall under section 304 Part-II of the Code of Criminal Procedure. He submitted that there was no intention on the part of the Appellant to commit murder of Sudhakar. He further submitted that the incident took place during a sudden quarrel. He submitted that there was no intention on the part of the Appellant to commit murder of Sudhakar. He further submitted that the incident took place during a sudden quarrel. Thus, the case would be covered by exception 4 to section 300 of the Code of Criminal Procedure. As far as this contention is concerned, it is noticed that the quarrel was going on between the Appellant and P.W.3 Sham. The deceased had nothing to do with the quarrel. No quarrel took place between the Appellant and the deceased. No words were exchanged between them or any abuses were given by either of them to the other. The deceased was a completely innocent by-passer who had intervened in the quarrel with the good intention of pacifying the quarrel. However, since the deceased came to the spot and tried to pacify the quarrel, the Appellant immediately stabbed him on the chest with a knife. There are two incised wounds on the chest of Sudhakar which is evident from the evidence of P.W.7 Dr. Kachare who has stated that he has noticed following injuries : "i. Incised wound at anterior of left chest below left nipple - horizontal size of 3 cm x 1 cm cavity deep, reddish both angle acute. ii Incised wound in left mid axillary line 5 cm below left nipple, vertical size of 1 cm x ¼ cm x cavity deep reddish angles acute. iii. CLW near nipple size of ¼ cm x 0.5 cm x 1 cm reddish. iv. Abrasion over right chest near right nipple 1 cm x 1 cm reddish. 13. The stab injuries were so deep and grievous that they had caused fracture of 4th and 5th ribs. The pleura was ruptured at left side haemorrhage are seen, the left lung and the pericardium was also ruptured. What is more important is that the heart was also ruptured by an incised wound at anterior wall 1.5 cm x 1cm x cavity deep. The nature of the weapon i.e. dagger, the force with which it was used in assaulting the deceased is seen from the internal injuries which clearly shows that the intention of the Appellant was to cause death. It is not the case of solitary blow but it is a case of multiple blows on the left side of the chest. From this it is clear that the intention was to cause death. It is not the case of solitary blow but it is a case of multiple blows on the left side of the chest. From this it is clear that the intention was to cause death. Looking to the facts of this case, we are of the opinion that the case would not fall under section 304 Part-II but it would clearly fall under section 302. Thus, we find no merit in the Appeal. Appeal is dismissed. 14. At this stage, we wish to place on record our appreciation for the way in which the learned appointed Advocate Mr. Prosper D'Souza conducted the Appeal. We found that he had meticulously prepared the matter and he has very ably argued the matter. We quantify his fees to be paid by the High Court Legal Services Committee, Bombay at Rs. 2,500/- (Rupees Two Thousand Five Hundred only). The same to be paid to the learned Advocate Mr. Prosper D'Souza within three months from today.