JUDGMENT A. P. LAVANDE, J. By this appeal, the appellant (hereinafter referred to as "the accused") takes exception to the judgment and order dated 6.3.2009 passed by the Ad-hoc Additional Sessions Judge-2, Wardha in Sessions Trial No. 120/07 convicting the accused for the offence punishable under Section 302 of the Indian Penal Code and sentencing him to undergo imprisonment for life. The accused has been convicted for causing the murder of one Manohar Chopde. 2. Briefly, the prosecution case is as under :The accused had illicit relations with one Sita resident of Sawla (Budruk) and he was staying in her house. Priorto that, Sita had illicit relations with Manohar Chopde but Manohar was convicted in a case under NDPS Act and was undergoing sentence and during this period Sita had developed illicit relations with the accused. After Manohar Chopde was released, he came to know about the relations between Sita and the accused and, therefore, he had quarrel with Sita. On 9.5.2007 at 11 p.m. the accused assaulted Manohar Chopde on his head by stick causing him bleeding injuries which resulted into his death. Manohar was taken to the hospital. PW.1 Gita Gakhre lodged report (Exh. 19) at Police Station Karanja on the basis of which the FIR No. 65/07 under Section 302 of Indian Penal Code was registered against the accused. One Sukhdeo Ghagare PW.4 who had intervened had also sustained injury. The dead body of Manohar Chopde was sent for postmortem examination which was conducted by Dr. Bhupendra Gathe PW.8. The statements of several witnesses were recorded. The articles seized during the course of investigation were sent for chemical analysis. A fier completion of the investigation, the chargesheet was filed in the Court of JMFC, Karanja (G) for the offence punishable under Section 302 of the Indian Penal Code. The case was committed to the Court of Sessions. 3. In Sessions Case No. 120/07, charge was framed against the accused for the offence punishable under Section 302 of the Indian Penal Code. He pleaded 'not guilty' to the charge. The prosecution to prove the charge against the accused examined 12 witnesses and produced several documents in support of the charge. The defence of the accused is of total denial and false implication. He pleaded 'not guilty' to the charge. The prosecution to prove the charge against the accused examined 12 witnesses and produced several documents in support of the charge. The defence of the accused is of total denial and false implication. The learned trial Judge upon appreciation of the evidence held that the prosecution was able to establish the offence of murder beyond reasonable doubt against the accused and consequently, convicted and sentenced him as above. 4. The trial Court placed reliance upon the evidence of four eye-witnesses, namely, Sukhdeo Ghagare PW4, Pravin Marape PW 5, Harishchandra Kuhike PW2, who turned hostile and Gulab Tople PW.6. The learned trial Court also relied upon the medical evidence tendered through Dr. Bhupendra Gathe PW.7 who had conducted postmortem examination and also that of Dr. Sachin Djwekar PW.7 who had examined Sukhdeo Ghagare PW.4. The learned trial Court also relied upon the spot panchnama (Exh. 23), inquest panch nama (Exh.24) and seizure panchnama (Exh. 25). 5. Mr. R.M. Daga, learned Counsel for the appellant/accused, submitted that the evidence of the eye-witnesses does not inspire confidence and the prosecution has not been able to establish commission of offence of murder by the accused. The learned Counsel further submitted that the medical evidence tendered by the prosecution also does not support the prosecution case and the learned trial Court could not have convicted the accused for the offence of murder on the basis of the evidence led by the prosecution. In the alternative, Mr. Daga submitted that since the medical evidence discloses that there was a single blow given by the accused on the head of the deceased and as such, even if the case of the prosecution is accepted, at the most offence punishable under Section 304 Part I and not Section 302 IPC is made out against the accused. In support of this submission, Mr. Daga placed reliance upon the judgment of the Apex Court in the case of Selvam .vs. State of Tamil Nadu, represented by Inspector of Police reported in (2012) 10 SCC 402 : 12013 AllMR (Cri) 379 (S.C.)]. 6. Per contra, Mr. M.K. Pathan, learned Additional Public Prosecutor, supported the impugned judgment and order and submitted that the evidence of the three eye-witnesses, namely, Sukhdeo Ghagare PW.4, Pravin Marape PW.5 and Gulab Tople PW. 6 is corroborated by medical evidence tendered through PW.8 Dr. Bhupendra Gathe and PW.7 Dr. 6. Per contra, Mr. M.K. Pathan, learned Additional Public Prosecutor, supported the impugned judgment and order and submitted that the evidence of the three eye-witnesses, namely, Sukhdeo Ghagare PW.4, Pravin Marape PW.5 and Gulab Tople PW. 6 is corroborated by medical evidence tendered through PW.8 Dr. Bhupendra Gathe and PW.7 Dr. Sachin Diwekar and, therefore, no fault can be found with the judgment and order of conviction passed by the learned trial Court. 7. We have carefully considered rival submissions, perused the record and the judgment relied upon by Mr. Daga, learned Counsel for the appellant. 8. In order to prove homicidal death of Manohar Chopde, the prosecution examined PW.8 Dr. Bhupendra Gathe, who conducted postmortem on the dead body of Manohar Chopde on 10.5.2007. He found the following injuries on his person :- 1. CLW over right side of forehead above right eyebrow of size 4 X 2 cm into bone deep, 2. CLW of size 1.5 cm X 1 cm. over right side of chin, 3. Multiple contusion (4 to 5 contusions) over right side of chest, 4. Multiple (7 to 8 contusions) over anterior aspect of right thigh, 5. Contusion over nose. Fracture of nasal sectum. All the above injuries were ante-mortem. He found the corresponding internal injuries. He opined that the cause of death was on account of haemorrhagic shock due to head injury. All these injuries were possible due to wooden stick. He issued postmortem report (Exh.39). He confirmed its contents as correct and identified his signature on the same. He further deposed that on 30.5.2007 he received requisition from OPS Karanja (G) for examination of wooden stick. He examined the weapon and opined that injuries mentioned in column nos.17 and 19 of postmortem report could have been caused by the said stick. He identified his signature on the query report (Exh.40) and confirmed its contents as true. He identified the stick (Article 6) as the one which was sent to him for opinion. The witness was not cross-examined by the accused. Thus, the evidence of PW.8 Dr. Bhupendra Gathe, which stands corroborated by postmortem report (Exh.39) clearly proves that death of Manohar Chopde was homicidal. The same is also corroborated by the inquest panchnama (Exh.24) which has been proved by Tejrao Hingwe PW.3. Therefore, the prosecution has been able to establish that the death of Manohar Chopde was homicidal. . 9. Thus, the evidence of PW.8 Dr. Bhupendra Gathe, which stands corroborated by postmortem report (Exh.39) clearly proves that death of Manohar Chopde was homicidal. The same is also corroborated by the inquest panchnama (Exh.24) which has been proved by Tejrao Hingwe PW.3. Therefore, the prosecution has been able to establish that the death of Manohar Chopde was homicidal. . 9. The prosecution also examined Dr. Sachin Diwekar PW.7, who had examined Sukhdeo on 8.5.2007 at about 3.10 p.m. He found the following injuries on his person :- Old lacerated wound on forehead above right eye of size 3 X 1 cm with scab formation. He opined that the cause of injury was hard and blunt object, age of injury was within 8 days and the healing period was 10 to 15 days. He had issued the certificate (Exh. 36). He identified the same and stated that the contents were correct. The witness was not cross-examined by the accused. The evidence of PW.7 Dr. Sachin clearly proves that on 18.5.2007 there was an old lacerated wound on his right forehead above right eye. 10. The prosecution examined four eye-witnesses, namely, Harichandra Kuhike PW.2, Sukhdeo Ghagare PW.4 (the injured), Pravin Marape PW.5 and Gulab Tople PW.6. Sukhdeo Ghagare PW. 4 deposed that he knew deceased Manohar Chopde. The incident had taken place on 9.5.2007 at about 10 to 10.45 p.m. He was sleeping on the cot in front of his grocery shop. He heard somebody saying "Melo Re Melo" at some distance. He rushed to the spot. He saw the accused assaulting Manohar Chopde by means of a bamboo stick on his head and stomach. Manohar received bleeding injuries on his head and he fell down. He tried to obstruct the accused. In the process, a blow of stick hit on his left eye. He told the accused not to beat Manohar but the accused said that if anyone would intervene, he would beat him. He returned home and tied injury with clothes. He identified the accused before the Court. He identified bamboo stick Article 6 before the Court as the one used by the accused. In cross examination, he stated that when he heard shouts, accused Manohar and other three persons were on the spot which was at a distance of about 40 ft. from his house. He identified the accused before the Court. He identified bamboo stick Article 6 before the Court as the one used by the accused. In cross examination, he stated that when he heard shouts, accused Manohar and other three persons were on the spot which was at a distance of about 40 ft. from his house. The accused gave 7 to 8 blows by means of bamboo stick on his head. He did not inform Yuvraj Ghagare, the Police Patil of their village about the incident on that day. He knew the deceased for about 7 to 8 years. He admitted that on that day there was no electric supply. He denied that at the relevant time he along with Manohar and his companion were gambling with cards and altercation took place on account of gambling or that there was scuffle in between them and in the process, he received injury to his eyes. He also denied that he along with other persons assaulted Manohar or that in order to save him self from the crime he did not give information to Police Patil or police. He stated that he knew Sita, wife of the accused, who was earlier living with Manohar. He did not know that when Manohar was in jail, accused married Sita. He stated that police had recorded his statement after four days. 11. PW5 Pravin Marape deposed that he knew the deceased and the incident took place at about 11 p.m. on 9.5.2007 in the village square. At that time, he was returning after attending programme at the house of one Divakar. When he reached near the square, he saw the accused assaulting Manohar by stick on his head, on account of which Manohar received bleeding injury and he fell down. Thereafter, he went to the house of Geetabai PW1 to inform about the incident. Geetabai PW1 came to the spot along with him. Then the accused searched for a rickshaw but they could not get any rickshaw. In the meantime, accused came with a stick concealed on the back side. Manohar died on the spot after one and half hour of the incident. He identified the accused present in the Court. He also identified bamboo stick Article 6 before the Court as the one used by the accused. In the meantime, accused came with a stick concealed on the back side. Manohar died on the spot after one and half hour of the incident. He identified the accused present in the Court. He also identified bamboo stick Article 6 before the Court as the one used by the accused. He further stated that he did not see playing cards scattered on the spot but there was one lantern of kerosene on the spot. His house is at a distance of about 200 to 250 ft. from the spot. He denied the suggestion that at the relevant time he along with Manohar, Sukhdeo, Vinod, Raju and Yuvraj were gambling on the spot' and there was a dispute between Manohar and them and, therefore, he along with his associates assaulted Manohar and in order to save himself and his associates, he falsely informed Geetabai that accused had assaulted Manohar. He stated that he had witnessed the incident from the distance of about 10 to 12 ft. He admitted that there was no electric supply. He denied the suggestion that the accused had not assaulted deceased by means of a stick. 12. PW.6 Gulab Tople deposed that the incident had taken place about 5 to 6 months before at about 10 p.m. At that time, he was sleeping in the house and he had heard commotion from the direction of the spot. He went to the said square. Manohar was lying in the square. The accused had assaulted Manohar by means of stick. Then he went away. The evidence of this witness cannot be accepted as that of eyewitness since he reached much after hearing commotion and more importantly he was sleeping at the relevant time. Therefore, we find it difficult to accept him as an eyewitness. 13. The prosecution also relied on the evidence of PW.2 Harichandra Kuhike, who in examination-in-chief stated that the incident had taken place on 9.5.2007 at about 10 to 10.30 p.m. when he was at his house. At that time, quarrel was going on in between deceased Manohar and the accused near the pole in the square. At that time, he was going to the shop. When he was returning from the shop, even then quarrel was going on. Thereafter he went home and went to bed. In the morning, Pravin Marape told him that the accused had assaulted Manohar. At that time, he was going to the shop. When he was returning from the shop, even then quarrel was going on. Thereafter he went home and went to bed. In the morning, Pravin Marape told him that the accused had assaulted Manohar. Thereafter he went to the spot and saw Manohar lying at the square. He was permitted to be cross-examined by the prosecution and in the cross-examination, he supported the entire prosecution case as per his statement recorded under Section 161 of Criminal Procedure Code. In the cross-examination, he admitted that Manohar Chopde was playing cards at that time and at about 11.30 p.m. the accused came there with bamboo stick and gave a blow by means of bamboo stick from his behind on his head because of which Manohar fell down. At that time, Sukhdeo (PW.4) raised his hand and in the process Sukhdeo received injury to his right hand. He admitted that the portion marked' A' from his statement was not correct. He identified the accused as the same. He could not identity the stick. In cross-examination on behalf of the accused, he denied that on that day there was no electric supply or that when the altercation took place he was at his house and it was only in next morning that he came to know that Manohar was beaten in the square. He stated that he did not know whether 15 to 20 crimes were registered against Manohar Chopde with Karanja Police Station. However, he stated that about 10 years back, Manohar was consuming Ganja but he did not know when he was convicted. He stated that he was standing near the square at a distance of 10 to 15 feet when the assault was made. He denied the suggestion that due to darkness he did not see the assailant. He stated that his statement was recorded four days after the incident. 14. The evidence of Sukhdeo Ghagare PW.4, Pravin Marape PW.5 and PW.2 Harishchandra Kuhike clearly proves that the accused assaulted the deceased Manohar Chopde on his head and stomach. Nothing tangible has been brought on record in their cross-examination on behalf of the accused nor any contradiction has been brought on record, vis-a-vis their police statements. 14. The evidence of Sukhdeo Ghagare PW.4, Pravin Marape PW.5 and PW.2 Harishchandra Kuhike clearly proves that the accused assaulted the deceased Manohar Chopde on his head and stomach. Nothing tangible has been brought on record in their cross-examination on behalf of the accused nor any contradiction has been brought on record, vis-a-vis their police statements. Merely because statements of two witnesses were recorded after four days by it self would not be sufficient to reject their testimony in the absence of any explanation having been sought by the accused from the witness or from the Investigating Officer. Therefore, in our view, the evidence of the above three witnesses clearly proves that the accused gave one blow on the head of deceased Manohar. 15. Geetabai Gakhare PW.I who lodged First Information Report. deposed that in the year 2007 Manohar Chopde was coming to village Shelgaon for cultivating her land though he was residing with Sita at village Shelgaon. Manohar was sent to jail. Therefore, Sita started residing with the accused in her house. After Manohar was released from jail, he came to Shelgaon. Accused and Sita drove him out. Therefore, Manohar went to Thanegaon. Manohar told her that he will cultivate her field. Thereafter Manohar told her that Sita was abusing him and, therefore, he abused her. She further stated that on the day of the incident at about 9 p.m. deceased came to her house and told her that he would go to the shop and return back after purchasing Bidi. She came in the courtyard and slept on the cot. Thereafter, Pravin and Vinod came to her house and told her that accused had assaulted Manohar Chopde in the square near the house of Meera Ingale and asked her to give water to Manohar. She went there with water. Manohar Chopde was saying "Namya Ne Marie". Manohar received injury on his head. She asked Manohar as to who had assaulted him to which he replied that accused had assaulted him. She tried to find out if any autorickshaw was available. However, the driver of the autorickshaw told her that he was not feeling well. Thereafter, she went to the house of Police Patil, who made telephone call to the police but police did not take any action. Thereafter she along with Police Patil went to Police Station Karanja Ghadge in an autorickshaw and she lodged report. However, the driver of the autorickshaw told her that he was not feeling well. Thereafter, she went to the house of Police Patil, who made telephone call to the police but police did not take any action. Thereafter she along with Police Patil went to Police Station Karanja Ghadge in an autorickshaw and she lodged report. She identified her signature on the FIR (Exh. 19) and also on the printed FIR (Exh.20). In the cross-examination, she denied that Manohar was habitual offender and, therefore, he had several enemies but she admitted that he was convicted under NDPS Act. The evidence of this witness clearly proves the motive on the part of the accused to commit the offence. Moreover, her version that deceased told her that it was Namya who had assaulted him has not been shaken in the cross-examination though suggestions have been put in the cross-examination. The oral dying declaration made by deceased to this witness also lends corroboration to the evidence of the eye-witnesses. Therefore, the prosecution has been able to establish that the accused having been enraged on account of Sit a keeping illicit relationship with the deceased after he was sent to jail, assaulted deceased Manohar with a stick causing him injuries resulting in his death. 16. The prosecution also relied upon the discovery of stick (Article 6) at the instance of the accused. The prosecution has not examined any panch but the discovery is sought to be proved through the evidence of P.I. Vijay Kuhikar PW.12, who claimed that on 14.5.2007 the stick was discovered at the instance of the accused. He produced Exhs.74 & 75 being the memorandum panchnama and the discovery panchnama. However, in the evidence he has not even deposed as to the place from which the stick was seized. Moreover, there is absolutely no reason forthcoming as to why the prosecution did not examine any panch to the disclosure statement as well as seizure of the stick at the instance of the accused. Therefore, we are unable to accept that the prosecution has proved that the stick used in the commission of the offence was discovered at the instance of the accused. 17. The next question which arises for consideration is what offence is made out against the accused. Therefore, we are unable to accept that the prosecution has proved that the stick used in the commission of the offence was discovered at the instance of the accused. 17. The next question which arises for consideration is what offence is made out against the accused. The prosecution evidence itsel f suggests that the accused had a grudge against the deceased because when he was sent to jail in a NDPS case the accused started living with Sita with whom he was earlier living. Moreover, the medical evidence clearly suggests that there was only one head injury which resulted in his death. Considering these circumstances coupled with the fact that the assault was made at about 11 p.m. when there was no electric supply in the village, it cannot be said that the accused intended to cause murder of Manohar. In our opinion, the evidence clearly suggests that the accused intended to cause injuries to the deceased which were likely to cause his death and, therefore, the accused is liable to be convicted for the offence punishable under Section 304 Part I and not Section 302 of Indian Penal Code. 18. I n the result, therefore, we pass the following order : I. The appeal is partly allowed. The conviction of the appellant! accused for the offence punishable under Section 302 of the Indian Penal Code and the sentence imposed on him is quashed and set aside. II. The accused is convicted for the offence punishable under Section 304 Part I of Indian Penal Code and sentenced to undergo R. I. for a period of ten years and to pay fine of Rs. 5000/and in default, to undergo R.I. for three months. III. The accused shall be entitled to set off the period of detention in terms of Section 428 of Criminal Procedure Code. IV. The order passed by the learned trial Court in so far as the disposal of property is concerned is maintained. The appeal stands disposed of accordingly. Appeal partly allowed.