JUDGMENT B. P. DHARMADHIKARI, J:- In this appeal filed under Section 374 (2) of the Criminal Procedure Code, the appellant who has been convicted for the offence punishable under Section 302 of Indian Penal Code, as also under Section 324 thereof with imprisonment for life and rigorous imprisonment for three months respectively, is before this Court. The incidence is dated 09.07.1997 and prosecution claims that the appellant committed murder of one Sk. Nabbo and injured P. W.2 Shamiullakhan on that day. Appellant was arrested on 09.07.1997 and this Court granted him bail on 26.03.1999. 2. Accused as also P.W.1 Jubedabegam are residents of Tajbagh locality and neighbours. On 09.07.1997 when Jubedabegum was sitting outside her house cleaning rice for cooking, accused asked her not to talk with his mother and brother. This resulted in exchange of words, Jubedabegum claims that she was abused and beaten. She reported the matter to police station, Sakkardara. After lodging report, when she was coming back, she found the accused standing in lane. He again abused and threatened to kill her because of report lodged. She went back to the police station and officer at the police station sent two constables to bring the accused to the police station. Accused in the meanwhile had left the area. The complainant informed the incident to neighbours who included deceased Nabbobhai and witness Aslamkhan. These persons assured the complainant that they would try to convince & pacify the accused. At about 2 P.M., she was proceeding along with her sister Noorjahan and her husband Shamiullakhan (P.W.2). The said sister and sisters' husband had come to enquire about the morning incident. They found accused standing at the door of his house, hence they went near the house of the accused and Shamiullakhan tried to pacify him, but the accused was not in a mood to listen. Sk. Nabbi @ Nabbobhai (deceased) arrived at the spot and he also attempted to persuade the accused. Accused/appellant Mohd. Riyaz did not appreciate the intervention of Nabbobhai; took out a spear head from above the door frame of his house and assaulted Nabbobhai with it. Blows were given on abdomen and thighs. With the result, Nabbobhai fell down. Shamiullakhan attempted to prevent further attack on Nabbobhai and accused delivered blows of spear head on his chest and shoulders. Riyaz did not appreciate the intervention of Nabbobhai; took out a spear head from above the door frame of his house and assaulted Nabbobhai with it. Blows were given on abdomen and thighs. With the result, Nabbobhai fell down. Shamiullakhan attempted to prevent further attack on Nabbobhai and accused delivered blows of spear head on his chest and shoulders. P.W.6 Aslamkhan watching the incident, rushed to the spot and caught hold of the accused along with Shamiullakhan and dragged him at some distance. Other people also gathered at the spot. 3. Complainant - Jubedabegum along with one Sanuallakhan (P.W.5) rushed to police chowki at Tajbagh and P.S.I. Mahalle sent two constable to the spot. He also sent a message to Police Station, Sakkardara. It was received by P.S.I. Vijay Bagde. Shri Bagde and Shri Mahalle also rushed to the spot. Mohd. Riyaz was caught on spot with weapon by the constables. The police machinery then completed usual formalities, injured Nabbobhai was taken by people to the Medical College and Hospital in an auto-rickshaw. On the basis of the report lodged by Jubedabegum, offence under Section 324 and 307 of the Indian Penal Code was registered. 4. Nabbobhai succumbed to his injuries on the way to hospital and hence, Section 302 of Indian Penal Code came to be added. Spot Panchnama was prepared. Blood mixed earth and sample earth, clothes of deceased and accused were seized and blood sample of accused was also drawn. After completing the investigation, charge sheet came to be filed on 06.10.1997 and case was committed to the Court of 2nd Extra Joint District and Additional Sessions Judge, Nagpur. The appellant pleaded not guilty and came to be tried. 5. The prosecution examined Jubedabegum as P.W.1, her brother-in-law Shamiullakhan as P.W.2; Aslamkhan as P.W.6, Sanaullakhan as P.W.5. Dr. Sanjay Parate (P.W.9) proved the injury report of appellant, while P.W.7 - Dr. Misbul Haq, was examined to prove the post mortem report. P.W.9 also proved the injury report of P.W2. Oral report lodged by the complainant about the incident in the afternoon was proved by examining Vijay Dongre, P.S.I as P.W.3. Seizure panchnama (Exh. 42) about clothes of the accused was proved by examining a student Yeshwant Bagde. Spot Panchnama was proved by examining Sannuallakhan (P.W.5), who also pointed out that the spear was stained with blood at the time of its seizure. Seizure panchnama (Exh. 42) about clothes of the accused was proved by examining a student Yeshwant Bagde. Spot Panchnama was proved by examining Sannuallakhan (P.W.5), who also pointed out that the spear was stained with blood at the time of its seizure. Aslamkhan (P.W6) was examined to support the version of complainant about two incidences in the morning and then about the incident in the afternoon in which Nabbobhai was killed. 6. It is in this background that we have heard Shri R.M. Daga, learned Counsel for the appellant and Mrs. S.S. Jachak, learned A.P.P. for respondent - State. Record shows that on 08.12.2011 Shri R.M. Daga, Advocate has sought leave to withdraw his vakalatnama and then notice was issued to the accused. On 23.01.2012 this Court has noted that the appellant was deliberately avoiding service of notice and hence, bail granted to him was canceled. The trial Court was directed to take him in custody and to produce him in the Court. On 08.08.2012, this Court has noted that non-bailable warrant issued against the appellant could not be executed and he is absconding. State sought issuance of proclamation under Section 82 of the Criminal Procedure Code and this Court while allowing it, directed the trial Court to take steps for issuance of necessary proclamation within three weeks. On 25.11.2013, Shri R.M. Daga was permitted to withdraw his vakalatnama and he was appointed as Amicus Curiae with direction that fees be charged to Legal Aid Committee. 7. Shri Daga, learned counsel appearing as Amicus Curiae, pointed out that the appellant/accused was at his residence where he was approached by P.W.2 Shamiullakhan, complainant - Jubedabegum, Noorjahan, deceased Nabbobhai and several other persons, hence, the appellant exercised right of self-defence. In any case according to him, Nabbobhai was a total stranger. Even as per prosecution, the appellant therefore had no intention to kill him. There was no enmity between the accused and deceased. Without prejudice, he submits that therefore, explanation IV to Section 300 is attracted and the culpable homicide, cannot be construed as murder. Inviting attention to• the evidence of P.W.9 and Exh. 62, he contends that injuries suffered by the appellant/accused are not explained by the prosecution. There was no enmity between the accused and deceased. Without prejudice, he submits that therefore, explanation IV to Section 300 is attracted and the culpable homicide, cannot be construed as murder. Inviting attention to• the evidence of P.W.9 and Exh. 62, he contends that injuries suffered by the appellant/accused are not explained by the prosecution. In this situation, according to him considering the above facts and age of the appellant at the time of commission of the alleged offence, he should be left free by accepting imprisonment undergone by him as sufficient. He contends that at the most punishment may be imposed under Part-II of Section 304 and hence, period of little less then two years spent in jail by young person like the appellant, is sufficient to meet the ends of justice. 8. Inviting attention to evidence of P.W.1 Jubedabegum, he contends that her evidence is full of omissions and contradictions and assault on thighs of Nabbobhai is an important omission. No injury is caused to Nabbobhai on abdomen and the post mortem report shows that it was on chest. Two earlier attacks or episodes in the morning are again omissions. 9. Evidence of P. W.2 Shamiullakhan is also read out in an attempt to show material omissions. Shri Daga, submits that evidence of P.W.5 is also on same lines. In the light of omissions as genesis of crime attempted to be brought on record by the complainant is not established, blow by the appellant to deceased Nabbobhai needs to be appreciated and provisions of Section 304-II should be applied. He invites attention of the Court to judgment reported at 2013 ALL MR (Cri) 2714 (Venkatesh Somraj Verilgadda and another vrs. The State of Maharashtra). 10. Mrs. Jachak, learned A.P.P. submits that this is not a case of solitary blow. With some purpose, spear head kept above the door of his house was retrieved by the accused and more than one blow came to be delivered on the deceased. Accused wounded PW-2 also. Three eye witnesses and medical evidence support this version. She invites attention to the evidence of P.W.8 Investigating Officer as also to the evidence of P.W.3 to show first two instances in the morning of 09.07.1997. She contends that in this situation, the reasons recorded by the Trial Court are just & warrant no interference and the appeal needs to be dismissed. 11. She invites attention to the evidence of P.W.8 Investigating Officer as also to the evidence of P.W.3 to show first two instances in the morning of 09.07.1997. She contends that in this situation, the reasons recorded by the Trial Court are just & warrant no interference and the appeal needs to be dismissed. 11. P.W.1 Jubedabegum in her evidence has stated that in the morning she was abused and beaten by the accused. She then went to the police station and lodged report. When she returned back, she found accused standing near his house with spearhead in his hand. He again uttered abuses and threatened to kill her. She rushed back to the police station Sakkardara. Instead of taking down report, officer present there, after one hour sent two police constables with her to apprehend the accused, but, by that time the accused had run away. At 2 P.M., her sister-Noorjahan and husband of Noorjahan - Shamiullakhan were returning to their house after paying visit to Jubedabegum and Jubedabegum was accompanying them. When they reached the house of accused, they found accused standing in the front of the door and husband of Noorjahan tried to persuade him not to indulge in such acts with women folk. Accused again gave abuse to her and beat her with kicks. He was not paying attention to Shamiullakhan. Nabbobhai, passing by the road came to pacify the accused & accused questioned Nabbobhai on his intervention and took out spear head kept above the door-frame of the front door of his house and assaulted Nabbobhai first on abdomen and then gave two blows on his thighs. When he was giving blow on thighs, accused was held by Shamiullakhan to avoid the attack, but it proved futile. Nabbobhai fell down on ground. Accused was caught hold of in the meanwhile by her sister's husband and P.W.6-Aslamkhan. Jubedabegum came to police station, Sakkardara lodged the report. When she came back to the spot, Nabbobhai was already taken to the hospital and accused was at the spot. He was caught by her sister, her husband, Badlubhai and Aslambhai and spear was still in the hands of the accused. As accused was not releasing the spearhead, police gave him beating by sticks on his hand and then only he released, the weapon. She also identified the spearhead. He was caught by her sister, her husband, Badlubhai and Aslambhai and spear was still in the hands of the accused. As accused was not releasing the spearhead, police gave him beating by sticks on his hand and then only he released, the weapon. She also identified the spearhead. She pointed out that husband of Noorjahan also received two injuries i.e. one on his chest and another below left arm. Her cross-examination shows that when they were trying to pacify the accused, other people in the locality had not gathered. She accepted that Nabbobhai was followed by some other persons to the spot. She could not state whether other persons were present near the spot of incident and watched it. She denied that in spite of exchange of words and quarrel in the morning she went to house of the accused with her sister and her husband. She denied that 10-12 peoples were assaulting the accused. She explained that as accused was standing at the door of his house and they were proceeding by road, husband of Noorjahan - Shamiullakhan felt that he should talk to accused and she further stated that her sister had narrated the contents of the report (Exh. 31). Her further cross-examination shows that fact of Jubedabegum along with Noorjahan and her husband proceedings towards house of Noorjahan, finding accused standing at the door of his house, accused beating her with kicks in presence of her sister and her sisters husband, Nabbobhai watching the incident, accused delivering two blows of spearhead on thighs of Nabbobhai, Shamiullakhan trying to obstruct the accused in order to save Nabbobhai, Shamiullakhan receiving two injuries, did not appear in her• statement to police, and she could not assign any reason therefor. She stated that the portion marked "A" in her report which revealed that the accused took out spearhead from pocket of his fullpant, was not correct. 12. Here evidence of P.W., 3-Vijay Nagorao Dongre, working as P.S.I. with Police Station, Sakkardara needs to be perused. He has deposed about the report lodged at about 11.30 A.M. by P.W.1 Jubedabegum, which was treated as N.C. He also deposed about Jubedabegum coming back and informing him about thereat by the accused and his sending two constables with her. He then speaks about a telephonic message from police chowki, Tajbagh about accused injuring Nabbobhai by using spearhead. He has deposed about the report lodged at about 11.30 A.M. by P.W.1 Jubedabegum, which was treated as N.C. He also deposed about Jubedabegum coming back and informing him about thereat by the accused and his sending two constables with her. He then speaks about a telephonic message from police chowki, Tajbagh about accused injuring Nabbobhai by using spearhead. In cross- examination, he stated that at about 11.30 A.M. he had taken report of P.W.1 and taken its note in the station diary. On second occasion, he did not take complaint in writing, he also accepted that on first occasion there was no complaint of beating. He denied that the complaint (Exh.31), was not lodged by Jubedabegum. He proved FIR (Exh.39). 13. P.W.2-Shamiullakhan is a witnesses and also a victim. He is husband of Noorjahan. His evidence in short shows that his wife had gone to the house of Jubedabegum and hence, he also went to the house of Jubedabegum. From the house of Jubedabegum they found that the accused was present in his house and hence he himself, Noorjahan and Jubedabegum went to the house of accused. Mother of accused told him that accused was not at home, so they started returning and at that time accused came out of his house and stood holding door frame and called P.W.2 towards him. He then tried to persuade and convince the accused not to quarrel with women and not to beat any woman. Accused asked him to go away. Wife of P.W.2 and Jubedabegum were standing near him. Nabbobhai came there and tried to convince the accused. Accused asked Nabbobhai not to interfere and suddenly took out spearhead from the place above the door frame and gave blow on the abdomen of Nabbobhai. He rushed towards accused to save Nabbobhai from further attack. Accused jumped away and inflicted blow on his left arm and then inflicted second blow on his chest. He also states that he was holding the weapon which was aimed/pointed towards his chest & was forcing towards his body by the accused, scuffle took place between him and the accused, he shouted for help and 2/3 peoples rushed and caught hold of the accused. Accused was not leaving the weapon. People gave blows of bricks on hand of the accused to lessen his grip on the weapon and in the meanwhile police came there. Accused was not leaving the weapon. People gave blows of bricks on hand of the accused to lessen his grip on the weapon and in the meanwhile police came there. Police dealt with lathi blows and then only the accused loosened his grip over the weapon. Suggestion was given to him & he denied that he dealt with spearhead blow on accused, who was caught hold by Nabbobhai, as accused bent down to avoid blow, blow landed on Nabbobhai. Paragraph no.6 of his cross examination is an omission. Omission is about accused beating Jubedabegum by kicks; her shouting for help; people giving blows of bricks and stick blows, P.W.2 stated that he did not inform the police that he saw accused coming on road and thereafter going inside, from the house of Jubedabegum. He denied that he was holding any spearhead in his hand. He stated that there was no scuffle in between the accused and Nabbobhai and he gathered name of Nabbobhai only after incident. 14. P.W.6 Aslamkhan's evidence is about the main incident in which Nabbobhai was killed. 15. P.W.7-Medical officer has proved the post mortem report and reason for death of Nabbobhai is 'Shock and haemorrhage due to injury to heart". His report on weapon is at Exh.53 and he has opined that the injuries noted by him are possible by said weapon. He stated that no injury was found on abdomen and he did not agree with the suggestion that the injury no.2 in column no. 17 is possible in scuffle, as the blow was with force. He has deposed about the injuries on body of Sk. Nabi @ Nabbobhai and those injuries are as under: (a) Stab wound left front of chest oblique toiling upwards literally 6 cm. X 2 cm. Cavity deep in sixth inter coastal space in mid clavicular line associated with fracture of sixth rib directed backward, upward and medially. (b) Stab wound tip of left shoulder 4cm. X 2 cm. X 8 cm. associated with fracture left shoulder joint. (c) Perforating injury left anteroinferor oblique with wound of entry laterally 8 cm., above the head fibula oblique 5 cm. x 2 cm. wound of exist 7 cm. midally to wound of entry, oblique 4 cm. x 2 cm. length of tract 7 cm. structure cut, a skin subcutaneous and muscle. X 8 cm. associated with fracture left shoulder joint. (c) Perforating injury left anteroinferor oblique with wound of entry laterally 8 cm., above the head fibula oblique 5 cm. x 2 cm. wound of exist 7 cm. midally to wound of entry, oblique 4 cm. x 2 cm. length of tract 7 cm. structure cut, a skin subcutaneous and muscle. (d) Incise wound left thigh 2 cm., about the middle of injury no.3 oblique 1 cm., x ½ cm. into muscle deep. About external injuries he has deposed that there were following fracture injuries. (a) Fracture of left shoulder. (b) Fracture of sixth rib mid xillegiblex line. As regards internal injuries he stated that there were following injuries. (a) In pleura there was a cut on left side 2.5 cm. corresponding injury no. 1 described in col. no.17. (b) In pericardium there was a stab through and through involving the anterior and posterior pericardium layers anterior 3.5 cm. long and posterior 2.5 cm. long corresponding to external injury no.1 col. no. 17. 100 cc of blood clots in pericardia cavity present. (c) Heart - perforating injury over heard corresponding external injury no. 1 of col. no.17.2 cm. above the apex, 3.5 cm. by ½ cm in left ventricle subsequently perforating the inter ventricle septum coming out through the right ventricle 2.5 cm x ½ cm. One litre of blood and clots present in the thoracic cavity. It is therefore, apparent that there was perforating injury aver heart, corresponding to external injury no.1. It also brings an record mare than one blow & use of strength. 16. P.W.9 Dr. Sanjay Parate has deposed about two injuries found an the person of P.W.2 Shamiullakhan, and stated that the injuries were possible by sharp edge weapon. In cross-examination, he also spoke about the injuries an the person of the accused. These injuries art, lacerated wound an left side of eye; lacerated wound aver the upper lip and looseness of teeth. 17. Injuries an person of accused rule out any attack an his person by P.W.2 or deceased Nabbobhai. It also rules out use of any sharp edge weapon an body of the accused. 18. The alleged omissions, attempted to be demonstrated by Shri Daga, learned Amicus Curiae are not fatal. 17. Injuries an person of accused rule out any attack an his person by P.W.2 or deceased Nabbobhai. It also rules out use of any sharp edge weapon an body of the accused. 18. The alleged omissions, attempted to be demonstrated by Shri Daga, learned Amicus Curiae are not fatal. Husband of Noorjahan i.e. P.W.2 had watched the accused from road and because of his concern towards Jubedabegum, wanted to, talk to, the accused. Thus, he went there alone with two ladies. Obviously these persons were not aggressors. If mother of the accused was at home, the accused could have examined her in defence, but he avoided to do so. It appears that passer by Nabbabhai (deceased) intervened only with good faith and his intervention was not liked by the accused. There was no reason for Shamiullakhan to either attack the accused or Nabbobhai. Accused in a moment of anger took out spearhead and administered fatal blow on chest of Nabbobhai which perforated his heart. He did not stopped there, but, attempted to inflict other blows on deceased. Two injuries sustained by P. W.2 also show that P. W.2 was also attacked. If spear was in the hands of P.W.2, these injuries would not have occurred. 19. We therefore, find no substance in the arguments that accused was acting in self defence. 20. However, spear was taken out by the accused only after intervention by Nabbobhai and not before that. Before that he had asked P.W.2 to leave the house. Thus, this intervention by Nabbobhai resulted in enraging him and under heat of passion without pre-mediation, he used the spearhead. However, the blow is not single and it is on vital part of the body with great force. Hence, intention to cause death is clearly brought on record by the prosecution. 21. Taking over all view of the matter, we find that the death of Nabbobhai on 09.07.1997 is not a culpable homicide envisaged under part II of Section 304 of Indian Penal Code. The appellant accused needs to be punished under Section 304-I, and accordingly sentence inflicted on him for offence punishable under Section 302 Indian Penal Code is modified to that extent. He is acquitted of offence under Section 302 of Indian Penal Code, but is convicted under Section "304, part-I" of Indian Penal Code, with rigorous imprisonment for a period of 10 (ten) years. He is acquitted of offence under Section 302 of Indian Penal Code, but is convicted under Section "304, part-I" of Indian Penal Code, with rigorous imprisonment for a period of 10 (ten) years. Rest of the order and sentence/punishment inflicted by the trial court is maintained as it is. Appeal is, thus partly allowed and disposed of. 22. Fees payable to Advocate R.M. Daga, quantified at Rs.5,000/- (Rs. Five thousand only). Appeal partly allowed.