JUDGMENT : SMT. V.K. TAHILRAMANI, J. : - This appeal is directed by the appellant-original accused against the judgment and order dated 12.03.2007 passed by the learned 7th Ad-hoc Additional Sessions Judge. Sewree, Mumbai in Sessions Case No. 863 of 2006. By the said judgment and order, the learned Sessions Judge convicted the appellant under Section 302 of IPC and sentenced him to suffer imprisonment for life and fine of Rs. 1000/- in default R.I. for six months. 2. The prosecution case briefly stated. is as under: (i) First informant PW 1 Ramkumar was running a tailoring shop in Room No.5 in Kala Killa at Dharavi, Mumbai. Ram Pal (deceased) and the appellant Subhash were working in the tailoring shop of PW 1 Ramkumar. PW 1 Ramkumar as well as the appellant and deceased Ram Pal used to sleep in the shop of PW 1 Ramkumar. (ii) The incident took place on 11.08.2006. On that day at 10.00 p.m., PW 1 Ramkumar came back to his shop after taking dinner. He saw that the appellant and the deceased Ram Pal were quarreling. They were abusing each other. PW 1 Ramkumar pacified the quarrel and thereafter, all of them went to sleep. (iii) At about 02.00 a.m. to 02.30 a.m., PW 1 Ramkumar saw the appellant inflicting blows with scissor on the stomach and other parts of body of Ram pal. PW 1 Ramkumar caught hold of the appellant. He shut door of his shop as the appellant had tried to run away. He then, went to the adjoining room where his brother PW 3 Amit was sleeping. PW 1 Ramkumar told PW 3 Amit about the incident. Both of them then took injured Ram Pal to Sion Hospital. They also took the appellant with them to Sion Hospital. Rampal was admitted in the emergency ward of Sion Hospital. PW 1 Ramkumar handed over the appellant to the police. The police arrested the appellant. Thereafter. PW 1 Ramkumar lodged his FIR (Exh 8). Thereafter, investigation commenced. Ram Pal expired on 14.08.2006. His dead body was sent for postmortem. PW 8 Dr. Dere performed the postmortem on the dead body of the deceased. The Doctor found following external injuries on the dead body of deceased Ram Pal: (I) Stab wound of 1 x 0.5 skin deep over right second inter-coastal space sutured. Thereafter, investigation commenced. Ram Pal expired on 14.08.2006. His dead body was sent for postmortem. PW 8 Dr. Dere performed the postmortem on the dead body of the deceased. The Doctor found following external injuries on the dead body of deceased Ram Pal: (I) Stab wound of 1 x 0.5 skin deep over right second inter-coastal space sutured. (2) Stab wound of 1.5 x 0.5 tissue deep over left anterior axillar line. (3) Stab wound of 0.75 x 0.75 tissue deep over epigastrium (sutured). (4) Stab wound of 1.5 x 0.5 tissue deep over left paraumblical region. (5) Stab wound of 1.5 x 0.5 tissue deep over left scapula (superior). Fractured ribs left side second and third. Injuries were ante-mortem in nature. Doctor Dere also noted following corresponding internal injuries: (1) Perforation of jejunum 0.5 X 0.5 Cm. (2) Perforation of 1 x 0.5 cm. Transverse Colon. (3) Perforation of 0.5 x 0.5 cm. 1 cm. Lateral to above injuries. In the opinion of Dr. Dere, the death of deceased was caused due to hemorrhage shock following penetrating injuries over chest and abdomen (unnatural). The Doctor further opined that the above mentioned injuries are possible due to infliction of blows by open scissor like Article A and the above mentioned injuries are sufficient in ordinary course to cause the death of the deceased. 3. Charge came to be framed against the appellant under Section 302 of IPC. The appellant pleaded not guilty to the said charge and claimed to be tried. The defence of the appellant is that of total denial and false implication. After going through the evidence adduced in this case, the learned Sessions Judge convicted and sentenced the appellant as stated in paragraph 1 above. Hence, this appeal. 4. We have heard the learned Advocate for the appellant and the learned APP for the State. After giving our anxious consideration to the facts and circumstances of the case, arguments advanced by the learned Advocates for the parties, the judgment delivered by the learned Sessions Judge and the evidence on record, for the reasons stated below, we are of the opinion that the appellant assaulted Ram Pal with scissor and caused his death. 5. The conviction is mainly based on the evidence of PW 1 Ramkumar who is an eye witness in the present case. 5. The conviction is mainly based on the evidence of PW 1 Ramkumar who is an eye witness in the present case. PW 1 Ramkumar was the employer of the appellant as well as the deceased, hence, he knew both of them well. PW 1 Ramkumar was running a tailoring shop situated in Room No.5 in Kala Killa at Dharavi, Mumbai. His brother PW 3 Amit was also working in the said shop. The appellant as well as the deceased were also working in the said shop. The appellant, deceased Ram Pal and PW 1 Ramkumar used to reside in the shop itself whereas PW 3 Amit used to sleep in the neighboring room i.e. Room No.6. P.W. 1 Ramkumar has stated that the incident took place on 11.08.2006. On that day at 10.00 p.m., PW 1 Ramkumar came back to his shop after taking dinner. He saw that the appellant and the deceased Ram Pal were quarreling. They were abusing each other. PW 1 Ramkumar pacified the quarrel and thereafter, all of them went to sleep. At about 02.00 a.m. to 02.30 a.m., PW 1 Ramkumar saw the appellant inflicting blows with scissor on the stomach and other parts of body of Rampal PW 1 Ramkumar caught hold of the appellant. He shut door of his shop as the appellant had tried to run away. He then, went to the adjoining room where his brother PW 3 Amit was sleeping. PW 1 Ramkumar told PW 3 Amit about the incident. Both of them then took injured Ram Pal to Sion Hospital. They also took the appellant with them to Sion Hospital. Rampal was admitted in the emergency ward of Sion Hospital. PW 1 Ramkumar handed over the appellant to the police. 6. The evidence of PW 1 Ramkumar is corroborated by the evidence of PW 3 Amit who is the brother of PW 1 Ramkumar. PW 3 Amit used to work in the shop of PW 1 Ramkumar and he used to reside in Room No.6 which is adjoining to the tailoring shop of PW 1 Ramkumar. PW 3 Amit has stated that at about 02.30 a.m., his brother PW 1 Ramkumar woke him up. PW 1 Ramkumar told him that the appellant had assaulted Ram Pal with a scissor. PW 3 Amit has stated that at about 02.30 a.m., his brother PW 1 Ramkumar woke him up. PW 1 Ramkumar told him that the appellant had assaulted Ram Pal with a scissor. PW 3 Amit went to the shop and he saw that Ram Pal had sustained bleeding injuries on his stomach and back. Then, they took Ram Pal in a taxi to the hospital. They also took the appellant along with them in the said taxi. Ram Pal was admitted in the hospital. Nothing has been elicited in cross-examination of both these witnesses so as to disbelieve their testimony. The evidence of PW 1 Ramkumar is also corroborated by the medical evidence. 7. PW 8 Dr. Dere conducted the postmortem on the dead body of Ram Pal. The injuries seen by him on the dead body of Ram Pal are consistent with the prosecution case. PW 8 Dr. Dere has clearly opined that the injuries were possible by scissor Article A. The position of the injury is also consistent with the evidence of eye witness PW 1 Ramkumar. 8. At the time of arrest, the clothes on the person of the appellant came to be seized vide panchnama Exh. 15. PW 5 panch witness Mr. Shaikh has deposed about this aspect. The clothes of the appellant were sent to C.A. and as per C.A. report (Exh 25), the clothes were found to be stained with blood of 'A' group. The clothes of the deceased were also found to be stained with blood of' A' group. This shows that the blood group of the deceased was found on the clothes of the appellant. This is a strong incriminating circumstance which goes against the appellant. 9. Mr. Sait, learned Advocate for the appellant submitted that the prosecution case cannot be believed because according to the prosecution, the incident occurred in Room No.6 wherein PW 3 Amit was residing. In order to support his contention, he has placed reliance on the evidence of Investigating Officer PSI Phondke who has stated that the incident occurred in Room No.6. Mr. Sait has submitted that in such case, the evidence of PW 1 Ramkumar that the incident took place in Room No.5 cannot be believed. He submitted that this shows that the genesis of crime has been suppressed. Mr. Sait has submitted that in such case, the evidence of PW 1 Ramkumar that the incident took place in Room No.5 cannot be believed. He submitted that this shows that the genesis of crime has been suppressed. On perusal of the evidence of PW 1 Ramkumar, it is seen that this witness has clearly stated that the incident had taken place in Room No.5. The spot panchnama (Exh 10) also shows that the incident had occurred in Room No.5. Blood stains were found in Room No.5. PW 3 Amit was residing in Room No.6 and from the spot panchnama, it is seen that Room Nos. 5 and 6 were separated by a partition. Thus, actually it is a one room which has been divided into two rooms by means of partition. It appears that on account of this, some confusion was created .and the Investigating Officer has stated that the spot of incident is Room No.6. Looking to the fact that Room Nos. 5 and 6 are actually one room, we see no reason to disbelieve the evidence of eye witness PW 1 Ramkumar who has stated that the incident took place in Room No.5. 10. Thereafter, Mr. Sait submitted that it is the case of complainant PW 1 Ramkumar and PW 3 Amit that injured Ram Pal was lifted by them and put in a taxi. Mr. Sait submitted that in such case, blood stains would definitely have been found on the clothes of PW 1 Ramkumar. Thus, according to Mr. Sait, not finding of blood stains on the clothes of PW 1 Ramkumar raises suspicion whether PW 1 Ramkumar was actually an eye witness in the present case. The evidence of PW 1 Ramkumar has not been shattered. From his evidence, it can clearly be stated that he is an eye witness in the present case and he has witnessed the appellant assaulting Ram Pal with a scissor. In the present case, non-seizure of the clothes of PW 1 Ramkumar can at the most be said to be a defect in the investigation. The Supreme Court in the case of Karna Singh Vs State of M.P., 1995(5) SCC 518 has observed that in case of defective investigation, the Court has to be circumspect in evaluating the evidence but it would not be right in acquitting accused persons only on account of defect. The Supreme Court in the case of Karna Singh Vs State of M.P., 1995(5) SCC 518 has observed that in case of defective investigation, the Court has to be circumspect in evaluating the evidence but it would not be right in acquitting accused persons only on account of defect. In the case of Kishore Bhau Shin de Vs The State of Maharashtra, 2006 ALL MR (Cri) 2277 it is observed that if the evidence and the attendant circumstances establish that the accused has committed the crime, giving benefit of collusion or negligence of the investigation to the accused would not be in the interest of justice. Thus, in our view, the fact that the Investigating Officer did not seize the clothes of PW 1 Ramkumar would not affect the prosecution case, especially in view of clear testimony of eye witness PW 1 Ramkumar, who has stated that he saw the appellant assaulting Ram Pal with a scissor. 11. Mr. Sait pointed out that the evidence of PW 3 Amit and PW 1 Ramkumar cannot be believed in view of the fact that PW 3 Amit has stated that he reached the hospital at 02.45 a.m whereas PW 6 Police Constable Redekar has stated that he went to S ion Hospital at 03.00 to 03.30 a.m. At that time, he was informed that the injured was admitted in ICU and he has sustained injuries due to blows by scissor. He submitted that this inconsistency in time in the evidence of PW 6 Police Constable Redekar and PW 3 Amit renders the prosecution case suspect. As far as this aspect is concerned, it is noticed that PW 3 Amit has stated that they reached the hospital at 02.45 a.m. whereas PW 6 Police Constable Redekar has stated that• when he reached the hospital at 03.00 to 03.30 p.m., he was informed that the injured was admitted in ICU. This shows that PW 1 Ramkumar, PW 3 Amit and injured Ram Pal reached the hospital sometime before 03.00 to 03.30 p.m. because by the time PW 6 Police Constable Redekar reached the hospital, Ram Pal had already been admitted in ICU. Admitting Ram Pal in ICO would have taken some time. This shows that before 03.00 a.m. to 03.30 a.m., Ram Pal was admitted in the hospital. Admitting Ram Pal in ICO would have taken some time. This shows that before 03.00 a.m. to 03.30 a.m., Ram Pal was admitted in the hospital. In this view of the matter, we find no inconsistency in the time between the evidence of PW 3 Amit and evidence of PW 6 Police Constable Redekar. 12. Mr. Sait then submitted that there is no mens rea on the part of the appellant because had the appellant actually assaulted Ram Pal, he would not have gone to the hospital with Ram Pal. As far as this aspect is concerned, the evidence of PW 1 Ramkumar is material. PW 1 Ramkumar has stated that after seeing the incident of assault of Ram Pal in his shop, he shut the door of his shop as the appellant had tried to ran away. PW 1 Ramkumar then called his brother PW 3 Amit and both of them took injured Ram Pal to Sion Hospital. They also took the appellant with them to Sion Hospital and the appellant came to be arrested in the Sion Hospital. The evidence on record shows that the appellant did not on his own accompany the injured Rampal to the hospital but the appellant was taken by PW 1 Ramkumar and PW 3 Amit to the hospital. It is, in these circumstances, that the appellant was seen at the hospital with injured Ram Pal. 13. Mr. Sait pointed out that PW 6 Police Constable Redekar has stated that the appellant had brought injured to the hospital and there was no other person along with the appellant. In this context, we would like to refer to the evidence of PW 9 PSI Phondke. He has stated that when he reached the Sian Hospital, he was informed by the Police Constable that the injured was brought by PW 1 Ramkumar and the appellant. The evidence of PW 1 Ramkumar and PW 3 Amit clearly shows that they had taken the appellant along with them to the hospital when they took the injured to the hospital. PW 6 Police Constable Redekar arrested the appellant in the hospital. In such case, if the appellant had brought the injured to the hospital, there was no need for the Police Constable Redekar to arrest the accused unless some information implicating the appellant in the crime was given to him. PW 6 Police Constable Redekar arrested the appellant in the hospital. In such case, if the appellant had brought the injured to the hospital, there was no need for the Police Constable Redekar to arrest the accused unless some information implicating the appellant in the crime was given to him. Obviously, in such case, it is quite clear that PW 1 Ramkumar took the injured to the hospital and he also took the appellant to the hospital. In such case, it appeared to Redekar that the appellant had accompanied the injured to the hospital. 14. Looking to the evidence on record, we are of the opinion that the appellant committed the murder of Ram Pal by assaulting him with a scissor. At this stage, Mr. Sait submitted that benefit should be given to the appellant by bringing his case under Section 304 Part II or at the most 304 Part I of IPC. As far as this aspect is concerned, it is seen that the incident occurred at 02.30 a.m. Just immediately preceding the incident there was no sudden quarrel or sudden provocation or any private defence being exercised. The quarrel between the appellant and the deceased had taken place at about 10.30 p.m. and the incident took place four hours thereafter by which time, emotions, passions would have cooled down. The case is not as such as to fall under any of the exceptions to Section 300 of IPC. Moreover, looking to the number of injuries on the body of Ram Pal which are reflected in paragraph 2 above, the place where the injuries were sustained, the force used for causing the injuries, if all these aspects are considered, the case cannot be said to fall under Section 304 Part II or Part 1 of IPC. In this view of the matter, we are of the opinion that there is no merit in this Appeal, hence, we proceed to pass the following order: ORDER i. The appeal is dismissed. ii. Office to communicate this order to the Superintendent of prison where the appellant is lodged and to the appellant original accused. 15. At this stage, we must record our appreciation for Advocate Mr. Arfan Sait appointed from High Court Legal Services Committee, Bombay to represent the appellant. We found that he had meticulously prepared the matters and he has very ably argued the appeal. 15. At this stage, we must record our appreciation for Advocate Mr. Arfan Sait appointed from High Court Legal Services Committee, Bombay to represent the appellant. We found that he had meticulously prepared the matters and he has very ably argued the appeal. We quantity total legal fees to be paid to him in this appeal by the High Court Legal Services Committee at Rs. 2500. The said fees be paid to Advocate Mr. Arfan Sait within three months from today. Appeal dismissed.