JUDGMENT : Akil Abdul Hamid Kureshi, J. 1. This appeal is filed by the original accused No. 1 to challenge the judgment dated 01.09.2012 rendered by the learned Additional Sessions Judge, Ahmedabad in Sessions Case No. 414 of 2011. By the said judgment, the accused was convicted for the offences punishable under sections 302 and 323 of IPC and section 135 of the Bombay Police Act. For the offence under section 302, he was sentenced to life imprisonment. For other offences, lesser sentences were imposed. 2. Briefly stated, the prosecution version was that the complainant Meenaben and the accused No. 1 Gajendrasinh alias Jasubhai Narvatsinh Gohil had an affair in the past. Later on, Meenaben developed relations with deceased Ramdev Rudaji. On the night of 31.07.2011, at about quarter to 9, Meenaben and Ramdev Rudaji had gone to the market near her house to buy vegetables. Ramdev Rudaji was driving an autorickshaw which he had rented from the owner. The autorickshaw was parked near the house of the accused No. 1. When they passed by this autorickshaw they saw that the seat cover and the hood were damaged. When the accused No. 1 came there, Meenaben scolded him for damaging the rickshaw. The accused No. 1 abused her upon which a scuffle took place between him and the deceased. Accused No. 2 - brother of accused No. 1 also joined in the fight and started beating the deceased. At that time, accused No. 1 took out a knife and gave multiple blows to deceased Ramdev on his neck, chest and other parts of the body due to which he died. A charge was, therefore, framed against both the accused at Ex. 4 for having committed the offences punishable under sections 302, 323 read with 114 of IPC and section 135 of the Bombay Police Act. 3. The prosecution case would rest mainly on the account of Meenaben Rameshbhai Thakur, P.W. 9, the complainant. She also claimed to be an eye witness. She deposed that she was living in Gujarat for the past 15 years. Her husband had died due to some black magic. She was surviving by doing embroidery work. She came in contact with accused No. 1 since she had given work of constructing her house to him. Later on, deceased Ramdev also started coming to her house. Ramdev was driving an autorickshaw. Her husband had died due to some black magic. She was surviving by doing embroidery work. She came in contact with accused No. 1 since she had given work of constructing her house to him. Later on, deceased Ramdev also started coming to her house. Ramdev was driving an autorickshaw. The seat and the hood were torn by someone. At about quarter to 9 at night, on 31.07.2011, she and Ramdev had got down from her house to buy vegetables. They saw that the rickshaw was damaged. Ramdev was worried, what answer would he give to the owner. At that time, accused No. 1 came on his cycle. She scolded him saying that he may have an animosity with her, why was he causing damage to this poor man. Accused No. 1 claimed that he had not caused any damage. He slapped her and abused her upon which a scuffle took place between the accused No. 1 and the deceased. His brother arrived and he also started beating the deceased. Accused No. 1 had a knife with which he gave several blows to the deceased. Ramdev went near her house and fell down. Pintu, a boy from the neighbourhood came and told her that Ramdev has been murdered. She went there. Pintu called an ambulance from her phone. Ramdev was taken to L.G. Hospital where he was declared dead. Her FIR was recorded which was produced at Ex. 37. 3.1 In the cross examination, she was questioned mainly on her presence at the time of the incident. It was also suggested that there was not enough light to enable her to see the actual incident. 4. In the FIR, Ex. 37, this witness had given somewhat detailed account of her love affair with accused No. 1 and her developing close relations with the deceased later on, about which accused No. 1 was unhappy. However, regarding the incident itself, after giving the background leading to the quarrel, she had stated that the accused No. 1 and Ramdev had got into a scuffle due to which he had tried to intervene and soon the accused No. 1 had also joined. At this stage, according to her FIR, Ramdev had run towards her house. Soon Pintu came running and told her that Ramdev had fallen down. At this stage, according to her FIR, Ramdev had run towards her house. Soon Pintu came running and told her that Ramdev had fallen down. She ran there and saw that he was bleeding from the neck and back and she learnt that accused No. 1 had stabbed Ramdev. 5. Shailendrasing Rathod alias Pintu, P.W. 7, Ex. 34 deposed that on the night of the incidence at about 9 O'clock when prayers were going on in his house, he heard somebody shouting "Pintu Pintu". He went outside and saw that Ramdev had fallen down on the ground. Meenaben was also present there. He had told her that Ramdev had fallen down after which Ramdev was taken in an ambulance to the L.G. Hospital. Ramdev had injuries on the neck and the waist and other parts of the body from which he was bleeding. From then on, the witness turned hostile and claimed that he had not seen anybody running away from the place. This was in contrast to his police statement where he had claimed that he had seen the accused running away from the said place. 5.1 In his cross examination by the defence, he agreed that he had come out after hearing the shouts. He did not know who had shouted. Ramdev had already fallen on the ground when he came out. 6. Pravin Thakkar, P.W. 8, Ex. 35 was the owner of the autorickshaw which Ramdev was driving. His deposition is limited to the issue of Ramdev driving his autorickshaw on rent and that the said autorickshaw was damaged by someone. 7. The murder weapon knife was discovered at the instance of accused No. 1 under discovery panchnama Ex. 28. Though P.W. 5, Ramesh Prajapati turned hostile, the discovery was proved through the evidence of the Investigating Officer. The discovery panchnama would show that the said accused led the panch witness and the police party to a common plot of one Sainath Apartment from where he took them to a first floor house which was deserted. From this place, he had produced the clothes which he was wearing at the time of the incident and a knife hidden inside a tin box. 8. Dr. Manish Gelani, P.W. 4, Ex. 19 had carried out the postmortem. He was the Medical Officer at Civil hospital, Ahmedabad. From this place, he had produced the clothes which he was wearing at the time of the incident and a knife hidden inside a tin box. 8. Dr. Manish Gelani, P.W. 4, Ex. 19 had carried out the postmortem. He was the Medical Officer at Civil hospital, Ahmedabad. In his postmortem note, he had recorded the following injuries: "(1) 1 x 0.4 x 0.2 c.m. oblique (Downward medially) incised wound anterior of right thigh 10.5 c.m. infero medial to anterior superior iliac spine. (2) 1.5 x 0.4 x 1 c.m. oblique (Downward laterally) incised wound lateral of left uppermost thigh 6 c.m. infero lateral to anterior superior iliac spine. (3) 1 x 05 c.m. x thoracic cavity deep vertical stab wound on anterior of left chest which is 7.5 c.m. infero medial to left nipple and 8 c.m. left to midline upper angle acute and lower angle broad. (4) 1 x 05 x 0.5 c.m. oblique (Downward laterally) incised wound on lateral of Rt lower most chest at mid axillary line 25 c.m. infero lateral to left nipple. (5) 1 x 0.3 x 1 c.m. vertical incised wound anterolateral of left chest 12 c.m. infero lateral to left nipple and 18 c.m. left to midline. (6) 1.5 x 0.5 x thoracic cavity deep oblique (downward medially) stab wound back of right side chest (medial to lower scapular area) 5 c.m. right to midline 7 c.m. medial to mid scapular line. Superolateral angle acute and infero medial angle broad. (7) 1 x 0.5 x 0.8 c.m. oblique (downward medially) incised wound anterolateral of Rt. side neck which continuous with linear 9.5 c.m. abrasion (oblique) up to midline of neck Margins of all incised wound red, clean cut and everted. Margins of all stab wound red, clean cut and inverted. blood oozing from injury No. 06." 8.1 He pointed out that the injuries on the chest had damaged the lungs. According to him, the cause of death was excessive bleeding due to such injuries. He stated that such injuries could have been caused by muddamal article No. 6, the knife. 9. Various articles collected during the course of investigation were sent for forensic analysis. The FSL report read in tune with the Serological report Ex. 47 would show that the deceased had blood group 'B'. It was the blood of the same group which was found from the knife. 10. 9. Various articles collected during the course of investigation were sent for forensic analysis. The FSL report read in tune with the Serological report Ex. 47 would show that the deceased had blood group 'B'. It was the blood of the same group which was found from the knife. 10. This in the nutshell is the evidence on record. On the basis of such evidence, the learned trial judge convicted the accused No. 1 for offences punishable under sections 302 and 323 of IPC and section 135 of the Bombay Police Act and sentenced him to life imprisonment. Accused No. 2 was convicted only for offence under section 323 of IPC. His conviction is not under challenge. 11. Learned advocate Mr. P.H. Buch for the accused submitted that there were material contradictions in the evidence of the sole eye witness. She had given entirely different version in her FIR. She was an interested witness. No independent witnesses were examined. At any rate, according to the counsel, this was not a case of murder. Even according to the prosecution witnesses, the incident took place on the spur of the moment after a sudden fight between the accused and the deceased. 12. On the other hand, learned APP, Ms. Jirga Jhaveri opposed the appeal contending that the evidences on record conclusively prove that the accused No. 1 had stabbed Ramdev several times on vital parts of the body. There is no question of converting his conviction from that under section 302 to section 304 of IPC. 13. We may assess the evidence. P.W. 9, Meenaben Thakur, the first informant had given the background leading to the quarrel between the accused No. 1 and the deceased. In her deposition, she pointed out that her husband had died. She had come in contact with accused No. 1 since he had done the house construction work for her. Later on, she had developed relations with deceased Ramdev. Ramdev was driving an autorickshaw. Someone had damaged the autorickshaw upon which a fight took place during which accused No. 1 stabbed Ramdev with his knife. 14. The defence has not raised any serious dispute about the previous relations between P.W. 9 Meenaben and accused No. 1 and that Meenaben had later on developed relations with deceased Ramdev. According to this witness, on the night of the incident, she challenged the accused No. 1 for damaging the autorickshaw. 14. The defence has not raised any serious dispute about the previous relations between P.W. 9 Meenaben and accused No. 1 and that Meenaben had later on developed relations with deceased Ramdev. According to this witness, on the night of the incident, she challenged the accused No. 1 for damaging the autorickshaw. 15. Before further appreciating the evidence of this witness, we may briefly refer to the evidence of Shailendrasing alias Pintu P.W. 7. He was residing in the same neighbourhood. Meenaben had also referred to Ramdev falling down near his house. Shailendra in his deposition also confirmed that when he was at his house doing prayer with other family members, he heard somebody shouting his name. When he came out, he saw Ramdev lying on the ground profusely bleeding. He also stated that Meenaben was present at that time. Though this witness from this stage onwards turned hostile, he did support the prosecution on few important aspects. Firstly, that the incident happened just outside his house as also stated by Meenaben. Secondly, Ramdev was found lying on the ground when he came out hearing someone shouting his name and thirdly that according to this witness also Meenaben was present at that time. 16. It is true that Meenaben in her FIR had given slightly different version as compared to her deposition before the court. In her FIR, she claimed to have witnessed only the scuffle between accused Nos. 1 and 2 and the deceased Ramdev upon which Ramdev tried to run away but soon she reached the place and saw that Ramdev was lying covered with blood. 17. It may be that Meenaben may not have seen the entire incident particularly the later part of the fight when the accused No. 1 stabbed Ramdev several times. This may have happened a little distance away from where Meenaben was standing. However, Meenaben's presence at the scene of incidence is not questionable. Even Pintu referred to her presence. Thus, therefore, when Meenaben reached outside the house of Pintu where Ramdev was lying covered with blood, seconds later, it would make no significant difference whether she actually saw the accused No. 1 stabbing Ramdev or not. It is sufficient that she had been present all throughout, was in fact a part of the quarrel and had seen the two accused having fist fight with Ramdev. It is sufficient that she had been present all throughout, was in fact a part of the quarrel and had seen the two accused having fist fight with Ramdev. Her evidence read with that of P.W. 7 Pintu leaves little doubt that Ramdev was stabbed by accused No. 1. Whatever little room for doubt, gets eliminated with the fact that the murder weapon was discovered at the instance of accused No. 1 and this weapon carried the blood stains of the group belonging to the deceased. The medical evidence corroborates with the accounts of the eye witnesses. 18. We have noticed the nature of injuries caused by the accused No. 1. There were as many as three stab wounds which were caused on both the thighs and the neck and as many as three stab injuries on the chest. Thus, the accused had used a deadly weapon multiple times giving blows on the vital parts of the body. Even if the incident had taken place on the spur of the moment, he cannot claim the benefit of exception to section 300 to take his case into one under section 304 of IPC. 19. In the result, the judgment of the trial court concerning accused No. 1 is confirmed. Criminal Appeal is dismissed. R & P to be sent back to the trial court. Appeal Dismissed.