JUDGMENT : P.N. Deshmukh, J. 1. Above appeals are preferred against the judgment in Sessions Trial No. 156 of 1999 dated 11th of October, 2002 passed by Additional Sessions Judge, Akola, thereby convicting original accused No. 4 Padmakar Dadarao Thorat for the offence punishable under Section 302 of the Indian Penal Code and sentencing to suffer rigorous imprisonment for life and to pay a fine of Rs. 2,000/- in default of payment of fine to suffer rigorous imprisonment for one year. Original Accused No. 1 Shamrao Udaybhan Thorat, original accused No. 2 Ramkrishna Jamaji Thorat and original accused No. 3 Dadarao Rajaram Thorat are convicted for the offence punishable under Section 324 of the Indian Penal Code and are sentenced to suffer rigorous imprisonment for nine months and to pay a fine of Rs. 1,000/-, in default of payment of fine to suffer rigorous imprisonment for three months each. Original accused Nos. 1 Shamrao, accused No. 2 Ramkrishna and accused No. 3 Dadarao are acquitted of the offence punishable under Sections 147, 148, 326 and 302 read with 149 of the Indian Penal Code. Original Accused No. 5 Vishwas Awadoot Thorat and original accused No. 6 Awadoot Akaram Thorat are acquitted on all counts. Criminal Appeal No. 601 of 2002 is preferred by original accused No. 4 Padmakar S/o. Dadarao Thorat, Criminal Appeal No. 634 of 2002 is preferred by original accused No. 1 Shamrao Udaybhan Thorat and original accused No. 2 Ramkrishna Jamaji Thorat while Criminal Appeal No. 683 of 2002 was preferred by original accused No. 3 Dadarao Rajaram Thorat. During pendency of these appeals original accused No. 1 Shamrao Thorat (appellant in Criminal Appeal No. 634 of 2002) and original accused No. 2 Dadarao Thorat (appellant in Criminal appeal No. 683 of 2002) died and thus appeal against said appellants came to be abated. The accused in the appeals are referred according to their original accused numbers as referred by Trial Court in Charge (Exh. 13) for the sake of convenience. In brief, it is the case of prosecution that on 22nd of May, 1999 at about 5.35 P.M., deceased Kashinath and PW 1 Anil, son of deceased Kashinath were proceeding from their field along with straw sticks in a bullock-cart to their home by road passing from in front of house of accused No. 1 Shamrao. In brief, it is the case of prosecution that on 22nd of May, 1999 at about 5.35 P.M., deceased Kashinath and PW 1 Anil, son of deceased Kashinath were proceeding from their field along with straw sticks in a bullock-cart to their home by road passing from in front of house of accused No. 1 Shamrao. At that time, said accused abused them and asked accused Nos. 2 to 6 to accompany him towards PW 1 Anil and deceased Kashinath and gave a blow of stick on the head of Kashinath. Accused No. 4 Padmakar gave a blow from the blunt side of axe on the head of Kashinath due to which he sustained bleeding injuries. Accused No. 3 Dadarao gave a stick blow on the back of Kashinath due to which he fell down. In the course of same transaction accused No. 2 Ramkrishna gave stick blow on the forehead of PW 1 Anil and accused No. 5 Vishwas and accused No. 6 Awadoot gave blows of stick on his back. When the assault was in progress, PW 2 Shriram Thorat, elder brother of deceased, PW 3 Jaishree, daughter-in-law of deceased, arrived on the spot and carried injured to village Dinoda in a bullock cart where from they were further carried to Dahihanda Police Station in a jeep while PW 1 Anil lodged his report (Exh. 74) at 10.05 p.m. against the accused. PW 12 Ganesh Bhawsar, PSI, accordingly registered offence vide Crime No. 45 of 1999 for the offence punishable under Section 326 read with 34 of the Indian Penal Code and forwarded both the injured to District Hospital, Akola, where they were examined by PW 7 Dr. Chandan Jaiswal and issued injury certificates of Kashinath at Exh. 89 and of PW 1 Anil at Exh. 91. According to the case of prosecution, on the same day, on 22nd of May, 1999, PW 12 effected arrest of accused No. 1 Shamrao and accused No. 3 Dadarao and handed over further investigation to PW 11 Himmatrao, Police Head Constable, during the course of which he visited the spot at village Maroda and drew spot panchanama (Exh. 108) and effected arrest of accused No. 2 Ramkrishna and accused No. 4 Padmakar on 23rd of May, 1999. He effected seizure of axe from accused No. 4 Padmakar and sticks from accused Nos. 2 and 3 under seizure panchanama Exhs. 108) and effected arrest of accused No. 2 Ramkrishna and accused No. 4 Padmakar on 23rd of May, 1999. He effected seizure of axe from accused No. 4 Padmakar and sticks from accused Nos. 2 and 3 under seizure panchanama Exhs. 83, 84 and 85, respectively. 2. Kashinath died while in hospital at Akola on 3rd of June, 1999. Accordingly, inquest panchanama was drawn and body was forwarded for Post Mortem which was performed by PW 10 Dr. Vilas Sonone and issued Post Mortem report (Exh. 106). On death of Kashinath, offence under Section 302 of the Indian Penal Code came to be added in the present crime which was then investigated by PW 12 Ganesh Bhavsar, who arrested accused No. 5 Vishwas on 6th of June, 1999 and obtained blood sample of deceased, PW 1 Anil and of accused Nos. 1 to 5. The investigating Officer seized stick and Dhoti of accused No. 1 Shamrao under seizure panchanama (Exh. 101) and clothes of accused Nos. 2, 3 and 5 under seizure panchanama (Exhs. 102, 103 and 104). On 7th of June, 1999 accused No. 6 Awadoot was arrested. His memorandum statement came to be recorded at Exh. 97 and one stick came to be seized at his instance as per seizure panchanama Exh. 98 and his shirt under seizure panchanama Exh. 99. Blood sample of accused No. 6 Awadoot is seized. All the seized muddemal articles were forwarded for analysis to Chemical Analyzer vide requisition Memo Exh. 118 of which Chemical Analyzer's reports are at Exhs. 121 to 125. On completion of investigation, charge sheet is filed before the learned Judicial Magistrate (F.C.), Akot. In the course of time case came to be committed for trial before the Court of Sessions. Charge was framed against the accused for the offence punishable under Sections 147, 148, 302 r/w 149 and 326 r/w 149 of the Indian Penal Code to which accused pleaded not guilty and claimed to be tried. Defences of accused are of total denial. Charge was framed against the accused for the offence punishable under Sections 147, 148, 302 r/w 149 and 326 r/w 149 of the Indian Penal Code to which accused pleaded not guilty and claimed to be tried. Defences of accused are of total denial. In alternative, defence of accused No. 1 Shamrao, accused No. 2 Ramkrishna, accused No. 5 Vishwas and accused No. 6 Awadoot is that the road wherefrom PW 1 Anil and deceased were proceeding is a narrow road for bullock cart to pass through and since bullock cart was proceeded by this road, it dashed against the corner of the house of accused No. 1 Shamrao due to which quarrel arose, when PW 1 Anil, PW 2 Shriram also raised protest against accused No. 6 Awadoot as to why he was serving with accused No. 1 Shamrao and on that count assaulted him and in that transaction Kashinath sustained injuries when he intervened in their quarrel. Defence of accused No. 2 Ramkrishna is that his wife Kamalabai had filed case against PW 1 Anil, PW 5 Waman and PW 3 Jaishree which was pending and PW 1 Anil was pressurizing Kamalabai and accused No. 2 Ramkrishna to compound the offence, however, they were not willing for the same and as such he is falsely implicated. According to alternate defence of accused Nos. 3 and 4 they are falsely implicated due to their strained relations with PW 1 Anil, complainant and his family members. Considering the evidence on record, the learned Trial Court convicted the accused as aforesaid. Hence, these appeals. 3. Heard Mr. Anil Mardikar, Senior Counsel and Mr. R.D. Bhuibhar, learned counsel for the appellants and Ms. T.H. Udeshi, learned Additional Public Prosecutor for the State. 4. To effectively evaluate the submissions advanced by learned Advocates for both the sides, with their assistance, we have scrutinized the evidence on record and has noted that the case of prosecution is based on ocular evidence of PW 1 Anil, injured complainant, PW 2 Shriram, elder brother of deceased, PW 3 Jaishree and PW 4 Digambar who has partly supported the case of prosecution, and other corroborative evidence on the point of recovery of weapons and medical evidence of PW 7 Dr. Jaiswal and PW 10 Dr. Sonone. 5. Jaiswal and PW 10 Dr. Sonone. 5. It has come in the evidence of PW 1 Anil Thorat that deceased was his father, PW 5 Waman is his elder brother, PW 3 Jaishree is wife of Waman, PW 2 Shriram is elder brother of deceased and that all the accused are residing as their neighbours having one road passing in between their houses. On the point of incident he has stated that the incident occurred on 22nd of May, 1999 at about 5.30 p.m. near his house while he along with deceased Kashinath was proceeding in a bullock cart carrying straw sticks and after unloading it on their plot while they were returning back by the said road, from in front of house of accused No. 1 Shamrao, said accused abused them and in two minutes accused No. 1 called rest of the accused Nos. 2 to 6 to accompany him and on approaching to the complainant and deceased, accused No. 1 Shamrao gave blow of stick on the head of his father while accused No. 4 Padmakar gave a blow by an axe by its blunt side on the head of his father due to which he sustained bleeding injuries and accused No. 3 Dadarao gave a stick blow on the back of deceased. 6. PW 1 Anil further stated that accused No. 2 Ramkrishna assaulted him by stick on his head due to which he sustained bleeding injuries while accused No. 5 Vishwas and accused No. 6 Awadoot assaulted him by sticks on his back. 7. It is further stated that both the injured were thereafter carried to village Dinoda in a bullock cart by PW 2 Shriram, PW 3 Jaishree and PW 5 Waman and after one hour they visited Police Station Dahihanda by arranging vehicle Jeep where PW 1 Anil lodged his report (Exh. 74). It has further come in the evidence of PW 1 that Kashinath died while under treatment in the hospital on 3rd of June, 1999. 8. On considering cross-examination of complainant nothing material has been elicited from him creating doubt so far as incident of assault as deposed by him is concerned. In fact, we find that his evidence on the point of assault is not at all shattered. 8. On considering cross-examination of complainant nothing material has been elicited from him creating doubt so far as incident of assault as deposed by him is concerned. In fact, we find that his evidence on the point of assault is not at all shattered. Though few omissions from the evidence of PW 1 Anil are brought on record, we do not find same to be material being minor omissions which are reproduced below. "I have stated before the police in my statement dated 4/6/1999 and the report dated 22/5/1999 i.e. Exh. 74 and F.I.R. Exh. 75 that we untied the bullocks from the bullock cart at my house. I cannot assign any reason as to why it is not appearing in my statement. I have stated before the police in my statement and report that accused No. 1 called to accused No. 2 to 6 two minutes after untying the bullock cart. I cannot assign any reason as to why it is not appearing in my statement and report. I have stated before the police in my report Exh. 74 that accused No. 1 Shamrao gave blow of stick on the head of my father. I cannot assign any reason as to why police has not recorded it in my report." 9. Evidence of PW 1 Anil is found fully corroborated on the material aspect of assault on deceased Kashinath from the ocular evidence of PW 2 Shriram who has stated that at the time of incident while he was present in the courtyard of his house, which is at the distance of 6 to 7 ft. from the spot of incident, he found that PW 1 Anil and deceased Kashinath, after unloading straw sticks from their bullock cart were returning by the road when accused No. 1 Shamrao abused them in a filthy language as to why they had used the road to which deceased informed that the road is being used by them always and while they proceeded 2 to 3 ft. ahead accused No. 1 Shamrao gave a stick blow on the head of deceased. ahead accused No. 1 Shamrao gave a stick blow on the head of deceased. This witness has voluntarily stated that the blow was given after Kashinath alighted from the bullock cart and accused No. 4 Padmakar gave axe blow by its blunt side on the head of Kashinath and PW 3 Dadarao gave stick blow on his back upon which Kashinath fell down having sustained bleeding injuries due to axe blow. It is further stated by PW 2 Shriram corroborating the version of PW 1 Anil that at the same time accused No. 2 Ramkrishna assaulted PW 1 Anil by stick on his head and that accused No. 5 Vishwas and accused No. 6 Awadoot by stick on his back. According to PW 2 Shriram he did not intervene the quarrel due to his old age. He further stated that thereafter accused ran away from the spot and that PW 3 Jaishree, wife of PW 5 Waman, arrived on the spot of incident with whom he carried both the injured in a bullock cart to village Dinoda and from there to Dahihanda Police Station where P.W. 1 Anil lodged his report and were referred to Main Hospital, Akola, where Kashinath died after 13 days while under medical treatment and PW 1 Anil was discharged from the hospital after about 7 days. In the cross-examination it is specifically denied that he has no long sight. Nothing material is elicited in the cross-examination of this witness also, except for bringing on record omissions in paragraph No. 8 of his cross-examination, which we find to be minor in nature and as such do not dislodge his evidence on the point of assault at all, which are reproduced below - "I have stated before the police in my statement that at the time of incident Kashinath told to accused No. 1 Shamrao that it was his routine way. I cannot assign any reason as to why it is not appearing in my statement. I have stated before the police in my statement that Kashinath get down from bullock cart. I cannot assign any reason as to why it is not appearing in my statement. I have stated before the police in my statement that Anil PW 1 untied the bullocks at the time of incident. I have stated before the police in my statement when we came outside the village Maroda Waman meet us. I cannot assign any reason as to why it is not appearing in my statement. I have stated before the police in my statement that Anil PW 1 untied the bullocks at the time of incident. I have stated before the police in my statement when we came outside the village Maroda Waman meet us. I cannot assign any reason as to why it is not appearing in my statement. I have sated before the police in my statement that talk took place between Waman and Jayshree. I cannot assign any reason as to why it is not appearing in my statement. I have stated before the police in my statement that we were required to wait for vehicle for one hour. I cannot assign any reason as to why it is not appearing in my statement. I have stated before the police in my statement that we went in the Police Chowky Kutasa. I cannot assign any reason as to why it is not appearing in my statement. I have stated before the police in my statement that at the time of incident I saw Jaishree while coming on the spot of incident. I cannot assign any reason as to why it is not appearing in my statement." 10. In his cross-examination PW 2 Shriram has admitted that there is 5 ft. high compound wall to his house and has admitted that person standing in the court yard of his house may not be in a position to see outside due to the compound wall. However, we do not find this admission to be fatal to the prosecution in any manner since it is admitted by Shriram that his house is in the hutment area and the dimension of his courtyard is only four hands which may approximately admeasuring about 6 x 6 ft. as such in all probabilities the compound wall, referred by this witness, does not appear to be a pakka construction but may be sort of fencing which probability in fact is found more substantiated since Shriram has denied that if a person is standing in the courtyard of his house then he cannot see anything happening outside. In that view of the matter, we do not find any substance in the admission as aforesaid to hold that due to compound wall of 5 ft. In that view of the matter, we do not find any substance in the admission as aforesaid to hold that due to compound wall of 5 ft. height PW 1 Shriram could not witness the incident from his courtyard. 11. Evidence of PW 3 Jaishree further corroborates above evidence. She has stated that she knows all the accused and that at the time of incident she was present in her house at about 5.30 p.m. and while standing in a door of her house she saw deceased and PW 1 Anil having been abused by accused No. 1 Shamrao who then inflicted blows by sticks on the left side of head of Kashinath while accused No. 4 Padmakar gave axe blow on his head due to which Kashinath sustained bleeding injuries and accused No. 3 Dadarao gave stick blow on the back of Kashinath due to which he fell down. She further stated that in the same incident accused No. 2 Ramkrishna gave stick blow on the head of PW 1 Anil due to which he received bleeding injury. Accused No. 5 Vishwas and accused No. 6 Awadoot gave stick blows on his back due to which he fell down and thereafter all the accused ran away, while she along with PW 2 Shriram carried both the injured in a bullock cart. 12. She has further stated about PW 1 Anil lodging report at Police Station Dahihanda and about Kashinath being admitted in the hospital at Akola for treatment who died after 13 days of the incident. Again in cross-examination of this witness we find that nothing material has been elicited to doubt her version except for certain omissions which are found to be immaterial since do not go to the root of the case on the point of assault, which are reproduced below- "I have stated before the police in my statement that when I came in the door frame of my house, at that time I saw my father in law and my husband's brother Anil on the back side of the house. I cannot assign any reason as to why it is not appearing in my statement. I have stated before the police in my statement that my husband met us outside the village while proceeding in a bullock cart at village Dinoda. I cannot assign any reason as to why it is not appearing in my statement. I have stated before the police in my statement that my husband met us outside the village while proceeding in a bullock cart at village Dinoda. I have also stated to the police in my statement that my husband asked what happened and I narrated the incident how it took place. I cannot assign any reason as to why it is not appearing in my statement. I have stated before the police in my statement that we were required to wait for one to two hours at village Dinoda because vehicle was not available. I cannot assign any reason as to why it is not appearing in my statement. I have stated before the police in my statement that police from Police Chowky Kutasa has not taken our report. I cannot assign any reason as to why it is not appearing in my statement. I have stated before the police in my statement that Dadarao Patil noticed the incident. Dadarao Patil is the Sarpanch of village Maroda." In that view of the matter even if omissions as above appearing in the evidence of PW 1 Anil, PW 2 Shriram, PW 3 Jaishree, they are not at all material omissions to doubt or to dislodge the ocular evidence of these witnesses. 13. Evidence of PW 4 Digambar is to the effect that on the day of incident he had been to village Maroda to meet his friend Devidas Chavan at about 5.00 to 5.30 p.m. and while he was proceeding by the road he witnessed accused No. 1. Shamrao saying "Hana Mara Thoka" and had stated that accused No. 3 Dadarao gave stick blow to Kashinath. Accused No. 2 Ramkrishna gave blow of stick on the head of Anil. He has not fully supported the case of prosecution. In the cross-examination he had denied suggestion put to him that in the course of same transaction accused No. 4 Padmakar gave axe blow on the head of Kashinath. Prosecution has got proved said portion 'A' from his police statement at Exh. 126 from the Investigating Officer. He has not fully supported the case of prosecution. In the cross-examination he had denied suggestion put to him that in the course of same transaction accused No. 4 Padmakar gave axe blow on the head of Kashinath. Prosecution has got proved said portion 'A' from his police statement at Exh. 126 from the Investigating Officer. However, on scrutinizing ocular evidence of these witnesses, as discussed aforesaid prosecution can said to have established involvement of accused in the commission of present crime which is found further corroborated from the seizure of blood stained axe Article 1 and sticks Articles 2, 3 and 10 vide seizure panchanamas (Exh. 83 to 85) proved by PW 11 Apotikar, Head Constable, since PW 6 Haridas Chavhan, panch witness, has turned hostile. 14. Evidence of PW 12 Bhavsar, PSI, establishes that he has seized Article 7 stick, Article 9 Dhoti from accused No. 1, Article 4 Baniyan from accused No. 2, Article 5 Pant, Article No. 6 shirt and Article No. 10 sticks from accused No. 5 and Article 8 shirt from accused No. 3 under seizure panchanamas (Exh. 101 to 104) which panchanamas are also supported by evidence of PW 9 Raheman Khan, the panch witness. However, the articles seized as referred above, including weapons and clothes cannot said to be an incriminating evidence against the accused as according to the Chemical Analyzer report though blood group of PW 1 Anil is certified to be of group 'B', the blood groups of accused as well as human blood found on Articles 6, 8 and 9 is stated to be inconclusive. Even otherwise evidence of seizure of articles do not establish sealing of same and as such no much importance can be given to presence of human blood on these articles. However, even if above evidence is ignored, evidence of PWs. Even otherwise evidence of seizure of articles do not establish sealing of same and as such no much importance can be given to presence of human blood on these articles. However, even if above evidence is ignored, evidence of PWs. 1, 2 and 3 is reliable and acceptable which established that on the day of incident at about 5.30 p.m. accused No. 1 Shamrao abused deceased Kashinath and PW 1 Anil while they were proceeding by a bullock cart from in front of his house and in a quarrel which took place on that count, accused No. 4 Padmakar gave blow of axe by its blunt side on the head of Kashinath, followed by stick blows by accused No. 1 Shamrao on his head, followed by stick blow on the back of Kashinath by accused No. 3 Dadarao. 15. In the circumstances, from the evidence it appears to us that since accused No. 1 Shamrao gave abuses to the deceased since he brought bullock cart by a narrow road passing from in front of house of said accused, the incident took place in a spur of moment without any premeditation. In any case when there is a direct evidence on record motive cannot play much role. 16. In view of above material aspect of the case, we have thus considered the evidence with reference to involvement of appellants in commission of offence punishable under Section 302 of the Indian Penal Code or for lesser offence, as has been submitted on behalf of the appellant as an alternative submission. For this purpose, we have referred to evidence of PW 7 Dr. Chandan Jaiswal who on the day of incident on 22nd of May, 1999 in his capacity as a Medical Officer, General Hospital at Akola at about 10.45 p.m. had examined Kashinath and found following injuries on his person. "Injury No. 1: Contusion with abrasion on the temple of the scalp, size 3" x 3". Size of abrasion was 1" x 1", fresh in nature, probably caused by hard and blunt object. Injury No. 2 : Lacerated wound on fore-head left part of the scalp size ½" x ½" x ½" blood oozing was present fresh in nature, probably caused by hard and blunt object. Injury No. 3: Skull bone dimple (scalp bone) on parietal skull bone. Fracture skull bone. Probably caused by hard and blunt object. Injury No. 2 : Lacerated wound on fore-head left part of the scalp size ½" x ½" x ½" blood oozing was present fresh in nature, probably caused by hard and blunt object. Injury No. 3: Skull bone dimple (scalp bone) on parietal skull bone. Fracture skull bone. Probably caused by hard and blunt object. No other injuries than above were present on the body." And accordingly he issued injury certificate at Exh. 89. On the same day he examined PW 1 Anil and noted following injuries. "Injury No. 1: Lacerated wound on the scalp posterior part size 3" x 1" x ½" bleeding was present, edges were irregular. Injury was fresh in nature, caused by hard and blunt object. Injury No. 2: Contusion oblique in nature on the back on right shoulder. They are 2 in number size 4" x 1" reddish colour, fresh in nature. It be caused by hard and blunt object." and has issued injury certificate at Exh. 91. In the cross examination Medical Officer has denied that injuries mentioned in Medical Certificate (Exhs. 89 and 91) are not possible by blows of sticks and axe and in fact has stated that injury Nos. 2 and 3 sustained by deceased are possible by sticks and axe, respectively. 17. Evidence of PW 10 Dr. Sonone established that on 4th of June, 1999 when he was attached as Medical Officer, District Hospital, Akola, he had performed autopsy on the dead body of Kashinath and had noted following external injuries. "Injury No. 1: Sutured lacerated wound frontoparietal region ½ inch long x bone deep depressed fracture underlined bone. Injury No. 2 : Sutured lacerated wound on left scapular region, ½ inch long x 1 stitch, Muscle deep. Injury No. 3: Intra orbital echymosis." Above injuries were ante-mortem. He has also found following internal injury. "Injury No. 2: Depressed fracture fronto parietal bone left size 2½" x ½". Linear curved fracture fronto parietal temporal region left. Lineal curved fracture fronto parieto temporal bone (right side)" which was corresponding to injury No. 1 mentioned in column No. 17 of Post mortem report. 18. According to the Medical Officer, injuries mentioned in Post mortem report (Exh. 106) are sufficient to cause death in the ordinary course of nature and can be caused by hard and blunt object like stick, axe etc. 18. According to the Medical Officer, injuries mentioned in Post mortem report (Exh. 106) are sufficient to cause death in the ordinary course of nature and can be caused by hard and blunt object like stick, axe etc. In the circumstances, from the above discussed evidence we find that accused No. 4 Padmakar is the author of fatal injury. PW 10 Dr. Vilas Sonone stated that to receive fracture of skull, forceful blow of weapon like hard and blunt object is necessary. Evidence of eye witness establish that accused Padmakar gave blow of axe by its blunt side on the head of Kashinath causing fracture of skull. From the evidence, it is further disclosed that accused No. 4 Padmakar has given only one blow after indulging into quarrel and as such on the spur of moment. Considering said evidence and medical evidence cumulatively, we thus find that accused Padmakar had not repeated the assault. There is nothing on record to indicate that the said accused had committed culpable homicide amounting to murder by causing death of deceased with intention of causing his death or of causing such bodily injury as was likely to cause death. Therefore, the provisions of Part - II of Section 304 of I.P. Code would apply to the facts of the case on hand. We are thus of the view that the conviction of accused No. 4 Padmakar cannot fall under Section 302 of the Indian Penal Code but it would fall under Section 304II of the Indian Penal Code, since we attribute to him knowledge of his action having no intention to cause murder of Kashinath. Hence, we pass the following order. ORDER Criminal Appeal No. 601 of 2002 is partly allowed. The judgment and order dated 11th of October, 2002 passed by the Additional Sessions Judge, Akola convicting and sentencing the appellant Padmakar Dadarao Thorat for the offence punishable under Section 302 of the Indian Penal Code is set aside and is modified. Appellant Padmakar Dadarao Thorat is held not guilty of offence punishable under Section 302 of the Indian Penal Code but is held guilty of the offence punishable under Section 304 Part II of the Indian Penal Code. He is sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs. 500/-, in default to suffer R.I. for one month. He is sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs. 500/-, in default to suffer R.I. for one month. Set off be given as per the provisions of Section 428 of the Code of Criminal Procedure. The appellant shall surrender before the Sessions Court within six weeks from the date of this order. Criminal Appeal No. 634 of 2002 filed by Shamrao Udaybhan Thorat is dismissed as abated in view of his death on 17th of April, 2010. Criminal Appeal No. 634 of 2002 filed by Ramkrishna Jamaji Thorat is dismissed. The conviction against accused Ramkrishna Jamaji Thorat for the offence punishable under Section 324 of the Indian Penal Code is confirmed, so also the sentence. Set off be given as per the provisions of Section 428 of the Code of Criminal Procedure. The appellant Ramkrishna Jamaji Thorat shall surrender before Sessions Court within six weeks from the date of this order.