JUDGMENT : ROHIT B. DEO, J. 1. These appeals are heard and decided by a common judgment since the appeals challenge the same judgment and order of conviction dated 27.04.2015 in Sessions Case No. 19/2006 delivered by the Sessions Judge, Chandrapur, by and under which, the appellants have been convicted for offence punishable under Section 304 Part-II of the Indian Penal Code and are sentenced to suffer rigorous imprisonment for a period of ten years and to pay a fine of Rs. 500/- each. 2. Heard Shri A.M. Kukday, the learned counsel for the appellant in Criminal Appeal 32/2016, Shri M.L. Vairagade, the learned counsel in Criminal Appeal No. 299/2015 and Ms. F.N. Haidari, the learned counsel for appellants in Criminal Appeal No. 300/2015. Shri N.B. Jawade, the learned Additional Public Prosecutor appeared for the respondent/State in all the three appeals. 3. The learned counsels appearing for the appellants (herein after referred to as “accused”) are in unison in subjecting the judgment and order impugned to scathing criticism that the learned Sessions Judge committed a grave error in basing the conviction on the sole uncorroborated testimony of the son of Manohar (PW-1), whom the learned counsel would brand as a highly interested witness. The learned counsels would further urge that even if the testimony is accepted at face value, the prosecution has not proved an offence under section 304 Part-II of the Indian Penal Code and at the most the accused could have been convicted for offence punishable under section 324 of I.P.C. The learned counsels would hasten to submit, that this is a submission arguendo and without prejudice to the contention that the testimony of PW-1 is neither confidence inspiring nor is implicitly reliable and credit worthy. Per contra, Shri Jawade, the learned A.P.P. contends that there is neither a rule of evidence nor precedent to hold that the sole testimony of a related witness must receive corroboration by other direct or circumstantial evidence. He would contend that the difference between a related witness and an interested witness is articulated by the Hon’ble Supreme Court in State of Rajasthan vs. Smt. Kalki and Another, (1981) 2 SCC 752 and that in any event the testimony of PW-1 is sufficiently corroborated by the spot panchnama and the medical evidence. 4. The prosecution case 4.1. He would contend that the difference between a related witness and an interested witness is articulated by the Hon’ble Supreme Court in State of Rajasthan vs. Smt. Kalki and Another, (1981) 2 SCC 752 and that in any event the testimony of PW-1 is sufficiently corroborated by the spot panchnama and the medical evidence. 4. The prosecution case 4.1. The prosecution version discernible from the First Information Report (Exh.87): The informant is Sunil Manohar Gurnule, the son of the victim Manohar, who is examined as PW-1. The F.I.R. dated 02.11.2005 which is lodged at 07:05 p.m. states that at 01:30 p.m. when PW-1 was at the pan shop of Gajanan Nagose, his father Manohar Gurnule was walking towards his residence from the square and Bhupendra Sondawle (A1), Ramaji Sondawale (A2) and Purushottam Sondawale (A3) assaulted him in front of his residence by fists and kicks and Bhupendra further assaulted Manohar with a belt. The informant further states that Manohar then started for the Police Station to lodge a report and at that time Vilas Mahadole (A7) and Raju Selote (A4) assaulted Manohar by sticks, fists and blows. Manohar was injured and blood was oozing out from the left ear of Manohar. The F.I.R. further states that Manohar was then taken to Brahmapuri in a white trax by Raju Selote (A4) and Balkrishna Meshram (A5). 4.2. Prosecution case as is unfolded in the testimony of PW-1 during the trial: PW-1 states that he was sitting in front of the pan shop of one Gajanan Nagose, his father Manohar was walking towards his residence and at that time Purushottam Sondawale (A3), Ramaji Sondawale (A2) and Bhupendra Sondawale (A1) assaulted Manohar by fists, kicks and sticks in front of the residence of Manohar. PW-2 then states that Manohar was going towards the Police Station to lodge report and at that time Vilas Mahadole (A7), Rajesh Selote (A4) and Jiwan Meshram (A6) assaulted Manohar by fists, kicks and sticks in front of the residence of Manohar. Manohar suffered injuries to left eye and ear. Blood was oozing from the left ear of Manohar. PW-1 states that he went to the rescue of Manohar and took him to their residence. Manohar suffered injuries to left eye and ear. Blood was oozing from the left ear of Manohar. PW-1 states that he went to the rescue of Manohar and took him to their residence. PW-1 further deposes that he and Manohar were sitting on a cot in the courtyard of the house when Jiwan (A6), Vilas (A7), Raju (A4) and Balkrishna Meshram (A5) came and dragged Manohar towards the road and assaulted Manohar by fists, kicks and sticks. PW-1 then states that Balu (A5) lifted pumpkin from the courtyard of Manohar and assaulted Manohar on the head with the pumpkin. PW-1 then states, at that time one white jeep arrived at the spot, accused stopped the jeep, the accused lifted Manohar and kept him in jeep and took him away. Manohar was admitted in Rural Hospital, Brahmapuri in a comatose condition and was then shifted to General Hospital, Chandrapur. However, Manohar expired on 04.11.2015. 5. Ocular evidence 5.1. The prosecution has examined PW-1 Sunil Manohar Gurnule, PW-2 Javed Khan Pathan, PW-7 Devanand Nagose and PW-8 Shrihari Nagose as eye witnesses to the assault. PW-2, PW-7 and PW-8 have not supported the prosecution, were declared hostile and were permitted to be cross-examined by the prosecution. However, nothing is brought out in the cross-examination of PW-2, PW-7 and PW-8 to assist the prosecution. PW-1 Sunil, the son of the deceased, is the only eye witness who is supporting the prosecution. I will advert to the ocular evidence, at a later stage in the judgment. 6. The corroborative evidence 6.1. Spot panchnama: The spot panchnama dated 03.11.2005 is Exh.111 on the record of the Trial Court. The spot panchnama records that the spot of the incident is on the road near the residence of Patirao Meshram. The road is 15 feet wide. It is further recorded in the spot panchnama that in a drainage near the residence of Patirao Meshram a stone with blood stains is seen. Blood is also seen mixed with blood. Small pieces of pumpkin are seen in the courtyard of the deceased. 6.2. Recovery/seizure pursuant to the statement under section 27 of the Indian Evidence Act, 1872. 6.3. The prosecution version is that pursuant to statement of Vilas (A7) recorded under section 27 of Indian Evidence Act, a stick was recovered and seized from the vacant plot owned by one Narendra Sondawale. 6.2. Recovery/seizure pursuant to the statement under section 27 of the Indian Evidence Act, 1872. 6.3. The prosecution version is that pursuant to statement of Vilas (A7) recorded under section 27 of Indian Evidence Act, a stick was recovered and seized from the vacant plot owned by one Narendra Sondawale. A belt is allegedly recovered and seized pursuant to the statement under section 27 of the Indian Evidence Act given by Bhupendra Sondawale (A1). 6.4. The learned Sessions Judge has however, discarded the said corroborative evidence on the reasoning that the stick is recovered from open space and that the recovery of belt is of no significance in the absence of evidence to suggest that belt was a weapon of assault. 7. Medical Evidence 7.1. Dr. Smt. Jyostna Mhaskar (PW-4), who examined injured Manohar on 02.11.2005 at the Rural Hospital, Brahmapuri states that she noticed the following injuries: 1. Contusion on right side of forehead 3 cm x 3 cm. 2. Abrasion of right scapular region 3 cm x 3 cm. 3. Abrasion on right buttock 3 cm x 4 cm. 4. Abrasion of left buttock 1 cm x 1 cm. 5. Abrasion on left shoulder laterally 2 cm x 2 cm. 6. Contusion on left side of forehead 2 cm x 1 cm. 7. Contusion on right eye with oedema of right upper eyelid. 8. Abrasion on right knee anteriorly ½ cm x ½ cm. 9. Abrasion on left knee anteriorly 1 cm x 1 cm. 10. Bleeding from right ear. 11. Lacerated wound near left ear anteriorly 1 cm x ½ cm. PW-4 deposes that the injuries are possible by fists blows, stick and leather belt. In the cross-examination, PW-4 states that except injuries to ear, eyelid and buttock, other injuries are possible if a man under the influence of liquor repeatedly falls on the ground. She admits that unless ear is examined by earscope or by Xray, one would not understand the cause of bleeding from the ear. She states that rest of the abrasions and contusions are simple injuries. PW-5 is Dr. Digamber Dashatwar, who identifies the handwriting and signature of Dr. Indrayani Salphale, the then Medical Officer in General Hospital, Chandrapur who conducted the postmortem examination of the deceased. PW-5 proved the postmortem report (Exh.110). He states that injury mentioned in column 19 is sufficient to cause death in ordinary course of nature. PW-5 is Dr. Digamber Dashatwar, who identifies the handwriting and signature of Dr. Indrayani Salphale, the then Medical Officer in General Hospital, Chandrapur who conducted the postmortem examination of the deceased. PW-5 proved the postmortem report (Exh.110). He states that injury mentioned in column 19 is sufficient to cause death in ordinary course of nature. He further states that bleeding is possible from ear if there is a head injury. PW-5 admits in the cross-examination that there is no external injury corresponding to the injury mentioned in column 19. He admits that all injuries mentioned in column 17 are simple injuries. He further admits that injury mentioned in column 19 is possible if a person falls and his head or occipital region dashes against hard substance. The P.M. report Exh.110 states that probable cause of death could be due to injury to vital organs such as brain. Column 19 states that there is no obvious injuries on scalp. Column 19 however, states that there is hairline fracture of scalp horizontal 6 cm. in length on the left side in occipital region. 8. Consideration of the prosecution case 8.1. The only eye witness who has supported the prosecution is Sunil the son of the deceased (PW-1). The learned A.P.P. is right in contending that a related witness is not necessarily an interested witness. The learned A.P.P. is also right in contending that evidence must be weighed and not counted and the conviction can be based on the sole uncorroborated testimony of an eye witness, if the testimony is implicitly reliable and confidence inspiring. In Vadivelu Thevar vs. State of Madras, AIR 1957 SC 614 , the Hon’ble Supreme Court has categorized witnesses thus: (i) wholly reliable, (ii) wholly unreliable and (iii) neither wholly reliable nor wholly unreliable. The testimony of PW-1, who is the son of the deceased and the only eye witness supporting the prosecution, must be scrutinized closely on the touchstone of caution. I have attempted to do so, and the exercise impels me to view the testimony of PW-1 as “neither wholly reliable nor wholly unreliable.” 9. The testimony of PW-1 is not entirely free from doubt. I have attempted to do so, and the exercise impels me to view the testimony of PW-1 as “neither wholly reliable nor wholly unreliable.” 9. The testimony of PW-1 is not entirely free from doubt. The First Information Report (Exh.87) lodged by PW-1 seven hours after the incident speaks of the deceased having been assaulted by Bhupendra, Ramaji and Purushottam (A1, A2 and A3 respectively) in front of the residence of deceased by kicks and blows and Bhupendra is alleged to have used a belt. The second assault, as stated in the F.I.R. took place when the deceased was going to the Police Station to lodge a report and Vilas (A7) and Raju (A4) allegedly assaulted the deceased with stick, fists and blows. The F.I.R. is absolutely silent about the third assault which the deceased allegedly suffered in the courtyard of his residence. There is no whisper in the First Information Report about the deceased being assaulted with a pumpkin in the courtyard of the residence of the deceased. In the oral testimony, PW-1 has stated that the deceased was assaulted thrice. PW-1 states that the first assault was committed by Purushottam, Ramaji and Bhupendra. The accused 3, 2 and 1 effectively by fists, kicks and sticks. The use of stick is an omission. Pertinently, the testimony is silent on the use of belt by Bhupendra. The second assault is allegedly committed by Vilas (A7), Ramaji (A4) and Jiwan Meshram (A6) in front of the residence of the deceased by fists, kicks and sticks and according to PW-1, the deceased then suffered injuries to left eye and ear and blood started oozing from the left ear of the deceased. PW-1 states that he went to the rescue of the deceased and took the deceased inside the house and when PW-1 and the deceased were sitting on a cot in the courtyard, Jiwan (A6), Vilas (A7), Rajesh (A4) and Balu (A5) dragged the deceased towards the road and assaulted the deceased by fists, kicks and sticks. PW-1 states that the accused 5 Balu lifted a pumpkin from the courtyard and assaulted the deceased on the head with the pumpkin. PW-1 further states that a white jeep arrived at the spot, accused stopped the jeep and took the deceased to Brahmapuri. 10. In the cross-examination PW-1 denies that the assault took place near the house of Patirao Meshram. PW-1 further states that a white jeep arrived at the spot, accused stopped the jeep and took the deceased to Brahmapuri. 10. In the cross-examination PW-1 denies that the assault took place near the house of Patirao Meshram. This denial is inconsistent with the spot panchnama and previously recorded statement of PW-1 the attention of PW-1 is invited to the fact that there is no mention of assault by means of stick in the statement recorded by Police and PW-1 answers that he did state so. In paragraph 7 of the cross-examination of PW-1, an omission is brought on record which is to the effect that the use of stick is not mentioned by PW-1 in the statement to the Police while referring to the alleged assault on the deceased when the deceased was on his way to lodge a police report. The role attributed to Balu Meshram (A5) and in particular the alleged use of pumpkin to assault the deceased is an omission which is brought out in the cross-examination. PW-1 admits that the deceased was habituated to drinking liquor and that the deceased has consumed liquor on the day of the incident. He however, denies that the deceased was not in his senses. He denies the suggestion that the deceased was intoxicated and was abusing other people and was generally not in a position to balance himself. PW-1 denies the suggestion that as the deceased was abusive, the accused made him sit in the vehicle and admitted in the Hospital. 11. One glaring striking feature needs serious consideration. Balkrishna (PW-5) expired on 19.12.2013 and the testimony of PW-1 was recorded on 27.02.2014. In the examination-in- chief, the lifting of pumpkin and assaulting the deceased on the head with the pumpkin is attributed to Balkrishna. However, the witness was recalled and in further examination-in- chief PW-1 states that he did not understand the question and erroneously attributed the said role to Balkrishna. PW-1 stated that accused 7 lifted pumpkin and assaulted the deceased. The explanation that the question was not understood by PW-1 and therefore, the role was attributed to Balkrishna is unsatisfactory, to say the least. PW-1 stated that accused 7 lifted pumpkin and assaulted the deceased. The explanation that the question was not understood by PW-1 and therefore, the role was attributed to Balkrishna is unsatisfactory, to say the least. Apart from the fact, that the use of pumpkin as a weapon of assault is a clear after thought and is introduced only in the trial, a more plausible reason for the PW-1 to absolve Balkrishna and to attribute the assault by pumpkin to PW-7 Vilas appears to be the realization that Balkrishna was not alive. 12. The learned Sessions Judge, as is discernible from paragraph 17 of the judgment impugned takes note of the absence of an external injury corresponding to the headline fracture referred to in column 19 of the P.M. report. The learned Sessions Judge records a finding, that the deceased was assaulted on his head by means of pumpkin, which was hard enough to give fatal blow without causing any external injury. The testimony that a pumpkin was used to assault the deceased has undoubtedly weighed with the learned Sessions Judge is recording conviction under Section 304 Part II of I.P.C. However, upon a holistic appreciation of the oral testimony of PW-1 and the medical evidence, I am unable to hold that the prosecution has proved that the hairline fracture suffered by the deceased is positively and conclusively attributable to the alleged assault. The learned A.P.P. with usual fairness, does not dispute that the only injury, which if proved would constitute grievous hurt is the said hairline fracture to the scalp. 13. The testimony of PW-1, in my opinion, is neither wholly reliable nor wholly unreliable and the chaff must be separated from the grain by seeking corroboration from other material and circumstantial evidence. Accused 1 to 3 who are appellants in Criminal Appeal No. 299/2015 (accused 3 Purushottam has expired and the appeal stands abated as against Purshottam Sondawale) have not played any role, even according to PW-1, after the initial assault on the road in front of the residence of Patirao Meshram. Accused 1 to 3 who are appellants in Criminal Appeal No. 299/2015 (accused 3 Purushottam has expired and the appeal stands abated as against Purshottam Sondawale) have not played any role, even according to PW-1, after the initial assault on the road in front of the residence of Patirao Meshram. The use of stick which is attributed to the accused 1, 2 and 3 appears to be an omission which is duly proved in the testimony of the I.O. I am not persuaded to hold, on a overall appreciation of the evidence, that the prosecution has proved that accused 1, 2 and 3 had a common intention to inflict grievous hurt much less had the knowledge that by such act death would occasion. The only offence which is made out against the appellants in Criminal Appeal No. 299/2015 is under section 323 of the I.P.C. 14. The role attributed to appellants in Criminal Appeal No. 300/2015 is of having participated in the second assault on the deceased when the deceased was allegedly going to the Police Station to lodge report. The accused Raju and Jiwan, according to PW-1 also participated in the assault which took place in the courtyard of the residence of the deceased along with accused 7 Vilas and accused 5 Balu Meshram. The assault is allegedly by means of fists, kicks and sticks. The medical report corroborates the version of PW-1 that stick was used as a weapon of assault. However, there is absolutely no evidence to suggest that the assault was on a vital organ. I am not persuaded to hold that there was any intent to cause death much less that the accused were had the knowledge that the assault may cause death. The conviction of the appellants in Criminal Appeal No. 300/2015 for offence punishable under Section 304 Part-II is unsustainable. I would convict the accused in Criminal Appeal No. 300/2015 for offence punishable under Section 326 of the I.P.C. 15. The appellant in Criminal Appeal No. 32/2016 Vilas (A7) participated in the second and third assault. The conviction of the appellants in Criminal Appeal No. 300/2015 for offence punishable under Section 304 Part-II is unsustainable. I would convict the accused in Criminal Appeal No. 300/2015 for offence punishable under Section 326 of the I.P.C. 15. The appellant in Criminal Appeal No. 32/2016 Vilas (A7) participated in the second and third assault. However, there is no evidence on record to sustain his conviction under Section 304 Part-II even with the aid of section 34 of I.P.C. The common intention, if any, was only to cause grievous hurt and I would set aside the conviction under section 304-II and convict the accused Vilas for offence punishable under section 326 of the I.P.C. 16. Vilas the appellant/accused in Criminal Appeal No. 32/20016 was in judicial custody from 03.11.2005 to 13.02.2006 and from 10.10.2014 till date. He has already spent more than three years in the jail as under trial prisoner and then as a convict. 17. I modify the sentence to already undergone. The appellant/accused in Criminal Appeal 32/2016 be released from jail forthwith if not required in any other offences. 18. The appellant Rajesh Selote in Criminal Appeal No. 300/2015 has spent 2 years, 5 months and 18 days as an under trial prisoner and about 5 months and 11 days as convict, in jail. Rajesh Selote has already spent 2 years, 10 months and 11 days in jail as under trial prisoner and then as convict. Jiwan Meshram the other appellant in Criminal Appeal No. 300/2015 has spent approximately 10 months in jail as under trial prisoner and then as convict. Both Rajesh and Jiwan are labourers and are relatively young. I therefore, sentence them to the imprisonment already undergone. 19. The appellant/accused in Criminal Appeal No. 299/2015 who are convicted under Section 323 of the I.P.C. have spent more than 9 months in jail as under trial prisoner and then as convicts and are sentences to the imprisonment already undergone. 20. I would partly allowed all the three appeals in the aforesaid terms. 21. The appeals are disposed of accordingly.