JUDGMENT B.R. Gavai, J. 1. Being aggrieved by the Judgment and order dated 27.3.2012 passed by the learned Additional Sessions Judge, Yavatmal in Sessions Trial No. 3/11, whereby convicting the appellants for the offence punishable under Section 302 r/w Section 34 of the Indian Penal Code and sentencing each them to suffer imprisonment for life and to pay a fine of Rs. 5000/- each and in default to suffer simple imprisonment for six months, so also convicting the accused No. 2 Ravindra @ Vilas for the offence punishable under Section 325 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for three years and to pay a fine of Rs. 2000/- and in default of payment of fine to suffer simple imprisonment for three months, the appellants/accused have approached this Court. The prosecution case, in brief, is as under: On 19th September, 2010, P.W. 2 Prakash lodged a report with the Police Station, Ralegaon, stating therein that on the said date at 4.30 p.m. when he was present in his house, he heard the noise of quarrel. He states that thereafter he came out of the house and noticed that both the accused persons were assaulting his uncle Digambar by means of stick in front of the house of the accused Vilas. He states that both the accused assaulted on the head of his uncle Digambar by means of stick. While rescuing his uncle, the son of deceased Digambar viz. Vikas came there. Both took him to the house. He inquired with his uncle about the incident. He disclosed that he asked the accused Vilas as to why he was calling his son Mahesh as a thief, on this count both the accused beat him and abused him. Meanwhile, Mahesh also came to the house and stated that accused Vilas assaulted on his back and left hand by means of stick. The deceased was thereafter taken to the Government Hospital at Ralegaon. After the treatment, the Medical Officer asked him to take the deceased to the Government Hospital, Yavatmal. From there the deceased was being taken to the Hospital at Sevagram. However, he died on the way. On the basis of the oral report lodged by P.W. 2 Prakash, F.I.R., vide Crime No. 59/10 came to be registered. After the treatment, the Medical Officer asked him to take the deceased to the Government Hospital, Yavatmal. From there the deceased was being taken to the Hospital at Sevagram. However, he died on the way. On the basis of the oral report lodged by P.W. 2 Prakash, F.I.R., vide Crime No. 59/10 came to be registered. Upon completion of the investigation, charge sheet came to be filed in the Court of the learned Judicial Magistrate, First Class, Ralegaon. Since the case was exclusively triable by the Sessions Judge, the same came to be committed to the Sessions Judge, Yavatmal. The learned Sessions Judge framed charges for the offences punishable under Sections 302, 325, 504, 506 read with Section 34 of the Indian Penal Code, to which the accused pleaded not guilty and claimed to be tried. At the conclusion of the trial, the learned Sessions Judge acquitted the accused for the offences punishable under Sections 504 and 506 of the Indian Penal Code. However, the learned trial Judge convicted and sentenced the accused as aforesaid. Being aggrieved thereby, the present appeal. 2. Mr. R.M. Daga, the learned counsel for the appellants/accused submits that the evidence of the so-called eye witnesses viz. P.W. 2 Prakash, P.W. 3 Uttam and P.W. 5 Vikas is totally inconsistent with each other. He further submits that all the witnesses are interested witnesses and as such conviction on the basis of their testimony is not sustainable. The learned counsel, therefore, submits that the appeal deserves to be allowed and the accused be acquitted of the charges charged with. 3. As against this, the learned A.P.P. submits that merely because the witnesses are interested witnesses, cannot be a ground for discarding their testimony. He submits that in any case insofar as the material aspect is concerned, the evidence of all the three witnesses is consistent and as such no interference is warranted in the present appeal. 4. We would first examine as to whether the prosecution has proved that the death of the deceased is homicidal or not. From perusal of the evidence of P.W. 9 Dr. Wankhade and postmortem report Exh. 59, it would be seen that the following 15 injuries are sustained by the deceased. 1. Two intact stitches were present over lateral aspect of forearm. On removing the stitches, laceration measuring 3 x 1 c.m. in size was present. From perusal of the evidence of P.W. 9 Dr. Wankhade and postmortem report Exh. 59, it would be seen that the following 15 injuries are sustained by the deceased. 1. Two intact stitches were present over lateral aspect of forearm. On removing the stitches, laceration measuring 3 x 1 c.m. in size was present. Reddish in colour, irregular in margins, vertical in direction. 2. Swelling of right hand was present more on dorsal aspect. On opening, fracture of shaft of middle metacarpal bone was present, undisplaced fracture, hematoma was present at the fracture side. 3. Stitched wound with single intact stitch was present over lateral aspect of left ring finger at the junction of proximal and distal phalynx. On removing the stitch laceration measuring 1 c.m. x .2 c.m. reddish in colour, with irregular margins, vertical in direction was present. 4. Linear patterned contusion was present on left lateral upper back extending vertically upwards from posterior axillary line to left acromion process. The patterned contusion is rail line like or tram line like contusion, having two parallel arms or lines running side by side. Each line is blurred. Length of the patterned contusion is 28 c.m. breadth 2.5 c.m. the maximum diameter or breadth is 2 c.m. Between two lines area is intact at places. On giving incision blood is present in subcutaneous tissue. Contusion is reddish black in colour. This injury is caused probably by long cylindrical round hard and blunt object. 5. The linear patent contusion is present measuring 20 c.m. x 2.5 c.m. over left lateral chest and abdomen posteriorly (back) extending from posterior axillary line at the level of nipple to the lumber region at the level of umbilicus. In the upper half of the injury the two parallel lines can be appreciated like previous injury, in the lower half single line is appreciated. The margins of the lines are blood. Contusion is vertical reddish in colour. On giving incision blood is present in subcutaneous tissue. Injury is consistent with the use of round, long cylindrical hard and blunt object. 6. The linear patterned contusion is present over back on left side 5 c.m., below scapula, horizontal dark reddish in colour having two parallel lines running side by side area between two lines is spared at places. The lines are contused, blurred. On giving incision blood is present in subutance tissue. 6. The linear patterned contusion is present over back on left side 5 c.m., below scapula, horizontal dark reddish in colour having two parallel lines running side by side area between two lines is spared at places. The lines are contused, blurred. On giving incision blood is present in subutance tissue. The length of injury is 11 c.m. and width is 2.5 c.m. Injury is consistent with the use of round, long cylindrical hard and blunt object. 7. Diffuse swelling is present over back of neck more on left side. Bluish discolouration is present on area behind the left ear on giving incision dark red blood is present in the subcutaneous tissue. 8. Abrasion 2 c.m. x 0.3 c.m. present over right lower lateral back, 20 c.m. below scapula vertical in direction, reddish in colour. 9. Contusion measuring 4 c.m. x 0.6 c.m. present 2 c.m. below above injury vertical in direction, reddish in colour. 10. Contusion measuring 3 c.m. X 2.5 c.m. Present over left scapular blade, dark red in colour, vertical in direction, margins are blurred. On giving incision blood is present over the subcutaneous tissue. 11. Over the above mentioned contusion laceration measuring 1.5 c.m. x 0.6. c.m., present, irregular margins, dark reddish in colour and vertical in direction. 12. L shapped split laceration present over the posterior aspect of the parietal scalp in the suggital plane. The vertical arm measures 4 c.m. x. 0.6 c.m. and transverse arm measures 3 c.m. x 0.6 c.m. The Marigins are irregular, reddish, hemorrhagic subcutaneous tissue is seen. 13. Split laceration present over right parietal scalp measuring 7 c.m. x 2 c.m. tapering at both ends broder in middle, pear shaped, reddish hemorrhagic, margins are irregular, 12 c.m. above right tragus. 14. 7' shaped laceration present over occipital area around and 2 c.m. above occipital protuberance the transverse arm measures 5 c.m. x 2 c.m. and vertical arm measures 4 c.m. x 1 c.m., reddish hemorrhagic in colour, margins are irregular. Two intact surgical stitches are present over the laceration. 15. Stitch would having nine intact stitches present over left temporo occipital scalp on removing the stitches lacerated wound measuring 11 c.m. x 0.5 c.m. in size starting from 4 c.m. behind left mastoid bone and running towards the occipital protuberance. Laceration is reddish hemorrhagic, having irregular margins. However, P.W. 9 Dr. Wankhade has admitted that the injuries at sr. 15. Stitch would having nine intact stitches present over left temporo occipital scalp on removing the stitches lacerated wound measuring 11 c.m. x 0.5 c.m. in size starting from 4 c.m. behind left mastoid bone and running towards the occipital protuberance. Laceration is reddish hemorrhagic, having irregular margins. However, P.W. 9 Dr. Wankhade has admitted that the injuries at sr. Nos. 1 to 11 are not on vital parts. The cause of death given by P.W. 9 Dr. Wankhade is hemorrhage and shock as a result of traumatic head injury inflicted due to repeated forceful blows persistent with round elongated hard and blunt objects use in case of assault. From perusal of the postmortem report and the evidence of P.W. 9 Dr. Wankhade, we find that the prosecution has proved that death of the deceased is homicidal. 5. That leaves us to consider as to whether the prosecution has proved that the present appellants are the author of the crime or not? The prosecution mainly relies on the evidence of P.W. 2 Prakash, P.W. 3 Uttam and P.W. 5 Vikas. From the evidence of P.W. 3 Uttam, it would reveal that when he has reached the spot, the deceased was lying near drainage and he is unable to state as to how many blows of stick were given by the accused to Digambar. There are many omissions in his evidence. As such it is doubtful as to whether the said witness has really witnessed the incident or not. P.W. 2 Prakash, the first informant, has specifically admitted in his evidence that when Vikash reached at the spot, that time the deceased was lying near the drainage. It is, therefore, doubtful as to whether P.W. 5 Vikas, the son of the deceased, has really witnessed the incident or not. That leaves us with the testimony of P.W. 2 Prakash. He has stated in his evidence that when he was in his house, he heard noise of quarrel. Therefore, he came in front of his house. He had seen that both the accused were assaulting his uncle Digambar by means of stick. His uncle fell down near the drainage. Accused were beating him by stick on his head. He had gone there to rescue the quarrel. Accused Vilas threatened to kill, if anybody came to rescue the quarrel. The son of his uncle viz. Vikas came there. Thereafter, accused turned back. His uncle fell down near the drainage. Accused were beating him by stick on his head. He had gone there to rescue the quarrel. Accused Vilas threatened to kill, if anybody came to rescue the quarrel. The son of his uncle viz. Vikas came there. Thereafter, accused turned back. He along with Vikas and Amol brought his uncle to his house. He inquired with his uncle about the incident. Thereupon, he disclosed that accused Vilas was calling his son as thief and he asked Vilas as to why he was calling his son as thief. Thereupon, both the accused abused him and bet him. The evidence of this witness was sought to be attacked on the ground that since he was working in Shiv Pratisthan, Ralegaon, he was on his job and as such he could not have witnessed the incident. However, this witness has specifically stated that the day of the incident was Sunday and as such he was very much at home. The another ground on which the evidence of this witness is sought to be attacked, is that he is an interested witness. Merely because the witness is interested witness, cannot be a ground to discard his testimony. The only requirement is that the evidence of such witness should be scrutinized with greater caution and should be relied upon only if it is found to be reliable, trustworthy and cogent. We find that the evidence of the P.W. 2 Prakash is trustworthy, reliable and cogent. Apart from that, it is corroborated from the First Information Report lodged on the oral report of P.W. 2 Prakash. Apart from that the stick and the clothes seized on the memorandum of the accused No. 1 have been found having human blood in the C.A. Report. In that view of the matter, we find that the prosecution has proved beyond reasonable doubt that it is the appellants who are responsible for causing the death of the deceased. 6. Insofar as the conviction of the appellant No. 2 for the offence punishable under section325 of the Indian Penal Code is concerned, perusal of the evidence of P.W. 5 Mahesh clearly shows that the appellant No. 2 had assaulted him with a stick. In that view of the matter, no interference is warranted with the order of conviction and sentence in that regard. In that view of the matter, no interference is warranted with the order of conviction and sentence in that regard. That leaves us with a question, as to whether the offence punishable under Section302 r/w 34 of the Indian Penal Code needs to be maintained or altered to some other offence. From the evidence of the witnesses it has clearly come on record that there was no previous enmity between the deceased and the appellants. P.W. 6 Mahesh, who is a son of the deceased, has specifically admitted about the same. It is further to be noted that the incident had taken place in front of the house of the appellant No. 1. P.W. 2 Prakash, in his evidence, himself has submitted that on inquiry the deceased had informed that the deceased had asked the accused as to why they were calling his son as thief and, therefore, the accused started assaulting the deceased. The weapon' used is a stick which is commonly available in the village. Taking into consideration these aspects, it cannot be said that the appellants had premeditation to commit the murder of the deceased. The possibility of quarrel taking place on deceased accosting the appellants and in that quarrel the appellants assaulting the deceased with stick, cannot be ruled out. In that view of the matter, we find that the case would rather fall under Part I of section 304 of the Indian Penal Code and not under Section 302 of the Indian Penal Code. Hence, the following order. Order The Criminal Appeal is partly allowed. The order of conviction passed by learned Additional Sessions Judge, Yavatmal dated 27.3.2012 in Sessions Trial No. 3/11 against the appellants under Section 302 of the Indian Penal Code is altered to one under Section 304 Part I of the Indian Penal Code. The sentence of life imprisonment is reduced to rigorous imprisonment for a period of ten years. The rest of the order is maintained. Appeal Partly Allowed.