JUDGMENT : B.R. Gavai, J. 1. The appellant has approached this Court being aggrieved by the Judgment and Order passed by the learned Additional Sessions Judge, Bhandra, dated 7.1.2013 in Sessions Trial Case No.26 of 2011 thereby convicting the present appellant for the offence punishable under Section 302 r/w. 34 of the Indian Penal Code and sentencing him to suffer imprisonment for life and to pay a fine of Rs.5,000/-; in default to suffer rigorous imprisonment for six months. 2. The prosecution case, in brief, as could be gathered from the material placed on record, is thus : Lata Yograj Kayate (PW-1) had lodged oral report below Exh.30, on the basis of which the First Information Report came to be lodged below Exh.31. It is stated in the F.I.R. by the first informant Lata (PW-1) that her father-in-law deceased Yadaorao Badhuji Kayate was assaulted with sticks by Original accused no.2 i.e. present appellant as well as her husband Ramkusan. It is the case of prosecution that, on the day of incident i.e. on 22.1.2011, at around 8.30 p.m., deceased Yadaorao after having meals went out of the house. Deceased had quarreled with accused no.1 Ramkusan s/o. Sadashiv Ukey asking as to why he was storing firewood near his house. Upon hearing the said quarrel, the complainant came out of the house and asked her father-in-law Yadaorao and accused no.1 not to quarrel with each other. It is the prosecution case that, at that time, accused nos. 1 and 2 brought sticks from the house and assaulted the deceased on his hand on the road. The deceased fell down, but the accused continued to assault him by sticks. At that time, complainant's daughter Ashwita Yograj Kayate (PW-2) shouted as “Ajoba mele, Ajoba mele”. Both the accused went to the house of Police Patil. On the basis of this allegation, Crime No.6 of 2011 came to be registered. Investigation was carried out. At the conclusion of investigation, charge sheet came to be filed in the Court of Judicial Magistrate, First Class, Pauni. Since the case was exclusively triable by the learned Sessions Judge, Bhandara, the same came to be committed to the learned Sessions Judge, Bhandara. The learned Judge framed charge from the offence punishable under Section 302 r/w. 34 of the Indian Penal Code below Exh.23. The accused pleaded not guilty and claimed to be tried. Since the case was exclusively triable by the learned Sessions Judge, Bhandara, the same came to be committed to the learned Sessions Judge, Bhandara. The learned Judge framed charge from the offence punishable under Section 302 r/w. 34 of the Indian Penal Code below Exh.23. The accused pleaded not guilty and claimed to be tried. At the conclusion of the trial, the learned trial Judge passed the order of conviction and sentence as aforesaid. Being aggrieved thereby, the present appeal. 3. Mr. D.V. Chauhan, learned Counsel for the appellant submits that the learned trial Judge has grossly erred in convicting the appellant. The learned Counsel submits that the witnesses are interested witnesses and not only that, their evidence is also contrary to each other. The learned Counsel for the appellant further submits that, in any case, the case for the offence punishable under Section 302 of the Indian Penal Code would not be made out, inasmuch as from the evidence of prosecution witnesses itself, it would reveal that there was no intention on the part of the accused to commit murder of the deceased. 4. The learned A.P.P., on the contrary, submits that merely because the witnesses are interested, it cannot be a ground to discard their testimonies. It is submitted that the evidence of Lata w/o. Yograj Kayate (PW-1) and Aswita d/o. Yograj Kayate (PW-2) is consistent and as such, no interference is warranted in the present appeal. 5. With the assistance of the learned A.P.P. as well as the learned Counsel for the appellant, we have scrutinised the evidence on record. From the evidence of Dr. Abhay s/o. Bhanudas Thul (PW-9), we find that no interference is warranted with the finding that the death of deceased is homicidal. 6. In her evidence, Lata Kayate (PW-1), who is the first informant, has stated that, on the night of incident, after having meals, her father-in-law Yadaorao went out. She was inside the house. At that time, her elder daughter Ashwita came to her and stated that fighting is taking place between her father-in-law Yadaorao Kayate on one hand and accused nos. 1 and 2 on the other hand. She states that thereafter she went out. At that time, she saw that both the accused persons were beating her father-in-law with sticks. She asked the accused persons not to beat her father-in-law with sticks. 1 and 2 on the other hand. She states that thereafter she went out. At that time, she saw that both the accused persons were beating her father-in-law with sticks. She asked the accused persons not to beat her father-in-law with sticks. She further states that her father-in-law had sustained injuries on head and fell down. Though there are certain contradictions and omissions in her evidence, the vital part of her evidence, insofar as assault on the deceased is concerned, has gone unchallenged. Not only that, but her testimony is corroborated by the First Information Report which was lodged immediately. 7. Aswita d/o. Yograj Kayate (PW-2) is daughter of Lata Kayate (PW-1). She also states in her evidence that, on 22.1.2011, she was outside the house. She saw that both the accused persons were beating her grandfather with sticks. She further states that, due to assault made by accused persons with sticks, her grandfather sustained bleeding injuries on his head and fell down on the road. Her evidence insofar as material aspect of assault is concerned has remained un-shakened. 8. Mahadeo Bhiku Chetule (PW-3) is Police Patil of village Tekepar Madagi. He states that, on the day of incident, in the night at around 8.30 p.m., both the accused persons came to his house. They told him that a quarrel took place between them and Yadaorao Kayate and they assaulted him with sticks and Yadaorao died. It could thus be seen that the ocular testimonies of Lata Kayate (PW-1) and Mahadeo Bhika Chetule (PW-3) are also corroborated by the extra-judicial confession given by the accused persons to Mahadeo Chetule (PW-3). Though Mahadeo Chetule (PW-3) has been thoroughly cross-examined, his testimony, insofar as extra-judicial confession is concerned, has remained unshakened. From the evidence of this witness, it would reveal that the extra-judicial confession is voluntary, without any coercion or force. 9. In view of the ocular testimonies of Lata Kayate (PW-1) and Aswita Kayate (PW-2), corroborated by the extra-judicial confession given to Mahadeo Chetule (PW-3), we find that the prosecution has proved beyond reasonable doubt that the original accused are the authors of the assault which lead to death of deceased. 10. That leads us to consider the next question as to whether the conviction under section 302 of the Indian Penal Code has to be maintained or altered to lesser offence. 10. That leads us to consider the next question as to whether the conviction under section 302 of the Indian Penal Code has to be maintained or altered to lesser offence. Perusal of evidence of Lata Kayate (PW-1) as well as Mahadeo Chetule (PW-3) would reveal that both the witnesses have stated that there was quarrel between the deceased on one hand and the accused persons on the other hand. Not only that, Lata Kayate (PW-1) has clearly admitted that her father-in-law was of quarrelsome nature and he used to abuse anybody. She further admitted that some villagers had lodged complaint against her father-in-law with Tanta Mukti Samiti as well as in Adyal Police Station. She has further admitted that it is true that because of quarrelsome nature of her father-in-law, many villagers were against him. She has further admitted that, in the year 2006, a police case was filed against her father-in-law for beating accused no.1 Ramkusan Ukey and that case is pending in Pauni Court. Taking into consideration the testimonies of Lata Kayate (PW-1) and Aswita Kayate (PW-2) itself, it could be seen that the incident has arisen out of quarrel between the accused and the deceased. Lata Kayate (PW-1) has herself admitted that the deceased was of quarrelsome nature and was in a habit of abusing anybody. In that view of the matter, we find that the possibility of the accused persons being abused by the deceased and as a result of this, the accused persons getting provoked and assaulting the deceased with bamboo sticks cannot be ruled out. It is to be noted that the bamboo sticks are available in most of the households in the villages. It is not the prosecution case that the accused have used any dangerous weapon to assault the deceased. We, therefore, find that the prosecution has failed to prove that the accused had an intention to cause death of the deceased. In that view of the matter, we find that the conviction under Section 302 of the Indian Penal Code would not be sustainable. The case would rather fall under Part II of Section 304 of the Indian Penal Code. The Criminal Appeal is, therefore, partly allowed. The order of conviction under Section 302 of the Indian Penal Code is altered to one under Part II of Section 304 of the Indian Penal Code. The case would rather fall under Part II of Section 304 of the Indian Penal Code. The Criminal Appeal is, therefore, partly allowed. The order of conviction under Section 302 of the Indian Penal Code is altered to one under Part II of Section 304 of the Indian Penal Code. For the said offence, the appellant is sentenced to suffer rigorous imprisonment for five years. Rest of the order including the order in relation to payment of fine is maintained. Fees of the learned Counsel appointed for the appellant are quantified at Rs.5,000/-. Mr. D.V. Chauhan, learned Counsel graciously states that the fees be not paid to him and instead, it be deposited with the High Court Bar Library as a donation on his behalf. The High Court Legal Services Sub-Committee, Nagpur shall deposit an amount of Rs.5,000/- with the High Court Bar Library and the receipt be placed on record.