JUDGMENT : P.N. Deshmukh, J. 1. This appeal takes exception to the Judgment passed in Sessions Trial No.193 of 2015 by the learned Additional Sessions Judge, Amravati, dt.23.8.2017 by which appellant came to be convicted for the offence punishable under Section 302 of the Indian Penal Code and is sentenced to suffer imprisonment for life and to pay a fine of Rs.1000/-; in default of payment of fine to suffer further imprisonment for one month. The appellant is also convicted for the offence punishable under Section 323 of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for one year. Both the sentences are directed to run concurrently. 2. Briefly stated, the case of prosecution is as under : That on 23rd July, 2015, PW-1 Sunil @ Shyam Ramdaspant Nikam – the Complainant, who is son of deceased Ramdaspant and younger brother of appellant, in order to carry out sowing operation in their field, hired additional pair of bullocks and he himself along with others got engaged in sowing operation when appellant Pravin @ Balya arrived in the field in presence of their mother and asked PW-1 Sunil as to why another set of bullocks was hired saying that the work required to be carried out would have been done by their own pair of bullocks and on this issue, raised quarrel with father saying that they will have to unnecessarily pay rent for the additional pair of bullocks and left the field. PW-3 Sindhubai Nikam mother of the Complainant also went home. In the meantime, deceased Ramdaspant came to the field and after making some inquiry and on considering the progress of sowing operations, took round in the field and went home. 3. After completion of sowing operations, at around 4.00 p.m., PW-1 Sunil went back to his house and found his father Ramdaspant lying in injured condition in the kitchen room while PW-4 Kamlabai Mahadeorao Sable – his aunt standing nearby. He also noted presence of PW-2 Rahul Namdeorao Hole and others as well as appellant at the entrance door. Similarly, one Mahadeo Sable and Dnyaneshwar Patil were also present on the spot. Sunil noticed bleeding injury on the chin of his father and blood oozing out from his left ear. He also noted presence of PW-2 Rahul Namdeorao Hole and others as well as appellant at the entrance door. Similarly, one Mahadeo Sable and Dnyaneshwar Patil were also present on the spot. Sunil noticed bleeding injury on the chin of his father and blood oozing out from his left ear. On PW-1 Sunil inquiring with the persons who were present at the spot, he was informed that his father and mother were assaulted by the appellant at around 3.00 p.m. and that his mother has gone to hospital for obtaining medical treatment. On PW-1 Sunil asking accused of assault, he confessed of the same and extended threats to the Complainant to do whatever he wants to do saying that he was ready to go behind the bars. Sunil thereafter arranged for an auto rickshaw of one Pramod and carried his father to Government Hospital, Warud where he was declared dead on admission. 4. Before registration of crime on the basis of information given by one Mahadeo Sable, the neighbour and husband of PW4 Kamlabai Sable, A.D. was registered and during the course of its inquiry, Inquest Panchanama was drawn and dead body was forwarded for post mortem. On the basis of report, dt.24.7.2015 (Exh.23) lodged by Complainant Sunil, offence came to be registered vide Crime No.49 of 2015, under Section 302 r/w. 323 of the Indian Penal Code and was investigated by PW5 PSI Santosh Vitthal Boyene, during the course of which he visited the spot, drew Spot panchanama and seized articles which were found on the spot including one Iron Mortar under Panchanama (Exh.19). On the same day, he seized blood sample and viscera of deceased along with his clothes under Seizure Panchanama (Exh.10) and effected arrest of accused as per Arrest Panchanama (Exh.9) and seized clothes on his person under Seizure Panchanama (Exh.21). On 27.7.2015, seized weapon was forwarded to Medical Officer for seeking opinion if the injuries sustained by deceased were possible by the same. The requisition letter is on record at Exh.44 and was replied in the affirmative. All the seized muddemal articles were forwarded to the Chemical Analyser under Requisition memo (Exh.45). On 27.7.2015, seized weapon was forwarded to Medical Officer for seeking opinion if the injuries sustained by deceased were possible by the same. The requisition letter is on record at Exh.44 and was replied in the affirmative. All the seized muddemal articles were forwarded to the Chemical Analyser under Requisition memo (Exh.45). Under Query of which requisition letter is on record (Exh.46 and 47 respectively), the Investigating Officer sought opinion as to cause of death of deceased and also time of his death, and on completion of investigation, submitted charge-sheet before the learned Court of Judicial Magistrate, First Class, Warud. 5. In the course of time, case came to be committed to the Sessions Court for trial. Charge is framed against the appellant vide Exh.2 for the offences punishable under Sections 302 and 323 of the Indian Penal Code, to which he pleaded not guilty and claimed to be tried. To establish the charge levelled against the appellant, prosecution in all examined six witnesses and had commenced its evidence on examining PW-1 Sunil @ Sham Nikam – the Complainant, PW-2 Rahul Hole neighbour and eye witness, PW-3 Sindhubai wife of deceased and injured witness, PW-4 Kamlabai Sable neighbour and an eye witness, PW-5 PSI Santosh Boye Investigating Officer, and concluded its evidence by examining PW6 Dr. Pramod Uddhavrao Potdar, who has placed on record Post Mortem Report (Exh.53). 6. Learned Sessions Judge, considering the evidence on record, convicted the appellant as aforesaid. Hence, this appeal. 7. Heard Mr. P.R. Agrawal, learned Counsel for the appellant and Ms Mayuri Deshmukh, learned Additional Public Prosecutor for the Respondent/State. It is submitted on behalf of the appellant that, though according to the case of prosecution, on the basis of information given by Mahadeo Sable, A.D. was already registered on 23.7.2015 at 18.10 hours and was investigated, during the course of which Inquest Panchanama was conducted on the body of deceased, report is lodged by PW-1 Sunil, son of the deceased belatedly on the following day on 24.7.2015 at 5.30 p.m. which aspect creates doubt in the case of prosecution. It is further submitted that this doubt is further substantiated as, according to contents of Inquest Panchanama, PW-1 Sunil – the Complainant is shown present when the inquest came to be drawn. Inspite of that, he did not find it necessary to immediately lodge report, but had lodged it on the second day. 8. It is further submitted that this doubt is further substantiated as, according to contents of Inquest Panchanama, PW-1 Sunil – the Complainant is shown present when the inquest came to be drawn. Inspite of that, he did not find it necessary to immediately lodge report, but had lodged it on the second day. 8. It is further contended that the incident is dt. 23.7.2015 while the appellant is arrested on 24.7.2015 at 20.45 hours and his pant and baniyan came to be seized under Panchanama (Exh.21) on 25.7.2015 at 12.15 hours. According to the C.A. report, the baniyan of appellant is stated to have human blood, which case of prosecution also is said to be doubtful as there is least possibility of appellant having same clothes on his person for two days; moreso when the baniyan was blood stained. It is also submitted that there is no evidence of sealing of clothes and hence, the case of prosecution is doubtful on this count also. 9. While advancing submissions on the evidence of PW-2 Rahul and PW-4 Kamlabai, who are both relied by prosecution as eye witnesses, it is submitted that evidence of both these witnesses, in fact create doubt about their presence at the scene of offence and as such, they cannot be said to be eye witnesses as their own evidence destruct presence of each other and has, therefore, contended that, in view of limited evidence available as aforesaid against the appellant, the appeal be allowed. 10. Learned Counsel for the appellant in the alternative by referring to evidence of PW-6 Dr.Pramod Potdar and PW-4 Kamlabai, the eye witnesses had contended that since the deceased had sustained only one injury to his head apart from fracture of mandible, but since as per medical evidence, cause of death of deceased is stated to be due to the head injury, no case is made out for the offence punishable under Section 302 of the Indian Penal Code and has, therefore, prayed that the appellant's involvement be considered for lesser offence. 11. 11. Ms M.H. Deshmukh, learned A.P.P. on the other hand contended that merely because the report is lodged on the second day of incident, that by itself is no ground to reject the case of prosecution at its thresh hold as there is nothing to consider that PW1 Sunil would falsely implicate his elder brother in causing murder of father whose evidence is corroborated by PW3 Sindhubai mother of PW-1 Sunil, and thus contended that this fact needs to be considered in its true perspective to consider delay, if any, caused in lodging the report. It is further contended that evidence of eye witnesses in fact fully establish appellant's involvement in the present crime. Learned Additional Public Prosecutor thus supported the impugned Judgment and prayed that the appeal be dismissed. 12. In the background of facts of the case of prosecution and submissions advanced as aforesaid, on perusal of evidence of PW-1 Sunil, it is only revealed that, on 23.7.2015 when he was in the agricultural land with PW-3 Sindhubai his mother, and labours Namdeo Sonare, Uttam Kusare and Shabbir (not examined), at about 1.00 p.m., the appellant arrived there and invited quarrel with him and his mother, asking as to why additional pair of bullocks was hired when they were having one pair of bullocks which was sufficient for sowing operation and went away. He further deposed that, at 2.30 p.m., his mother left for their house and at about 4.00 p.m. he left to go to his house and on reaching home, found his father lying on the ground near kitchen platform in injured condition having sustained bleeding injury upon his chin. PW-1 Sunil further deposed that PW-2 Rahul Hole, Mahadeo Sable, PW-4 Kamlabai as well as appellant were present at the spot. He further deposed that, on his inquiry with the persons present, he was informed that the appellant assaulted his parents and as such, his mother had gone to hospital for obtaining treatment. It is his case that he, therefore, inquired with appellant as to why he has assaulted their parents, upon which the appellant admitted his guilt and Sunil can do whatever he can. It is his case that he, therefore, inquired with appellant as to why he has assaulted their parents, upon which the appellant admitted his guilt and Sunil can do whatever he can. Thereafter, PW-1 Sunil asked PW-2 Rahul and accused to take the injured to hospital, upon which the appellant said that “let him die” and therefore, he along with PW-2 Rahul lifted the injured from the spot and put him on one cot and on inquiry by PW1 Sunil, the injured informed that he was assaulted by the appellant. 13. From his evidence, it has further come on record that he thereafter took his father to the hospital at Warud. However, he was declared dead on admission and accordingly, he lodged report (Exh.23) on the following day, upon which offence is registered. Evidence of PW-1 Sunil so far as alleged oral dying declaration is concerned, is by way of omission and PW-5 P.S.I. Santosh Boyene Investigating Officer who has recorded his statement has admitted PW-1 Sunil to have not stated said fact in his report or supplementary statement; however, voluntarily deposed that this fact is mentioned by Sunil in his subsequent statement recorded on 18.10.2015. Considering lapse of three months' period in recording such statement, we do not find it safe to rely upon said evidence of PW-1 Sunil on the oral D.D. when he claims that the deceased had informed him about assault on him by the appellant. 14. Evidence of PW-2 Rahul, who is relied as an eye witness by prosecution, has deposed that, on 23.7.2015, at about 3.00 p.m., when he was present in his house, which is situated adjacent to the house of deceased, he heard shouts as “Melore Bapa” from the house of appellant and then, immediately rushed to the spot and on entering the house, saw accused assaulting his father by iron mortar on his chin due to which, deceased sustained bleeding injury to his mouth and on hearing shouts, PW4 Kamlabai, Mahadeo Sable and one Patil arrived on the spot. PW-2 Rahul accordingly claims assault by mortar on chin of the deceased by the appellant. 15. Nothing material is elicited in the cross-examination of this witness to disbelieve his version. PW-2 Rahul accordingly claims assault by mortar on chin of the deceased by the appellant. 15. Nothing material is elicited in the cross-examination of this witness to disbelieve his version. However, when evidence of PW-2 Rahul is compared with the evidence of PW-4 Kamlabai, who is also relied as an eye witness, we find that her evidence dislodges the case of prosecution to hold PW-2 Rahul as a witness of incident as PW-4 Kamlabai has deposed that, on 23.7.2015, at 3.30 p.m., when she visited the house of deceased she saw that the appellant quarrelled with his father on the issue of hiring pair of bullocks for sowing operations, upon which the deceased said that “he should not teach him”, upon which appellant rushed on the person of deceased and assaulted him by fist and kick blows and pushed him, due to which he fell down on the ground shouting “Bapa Melore”. She had further deposed that, on watching this incident, she got frightened and went to her house to call her husband and immediately arrived with him on the spot, when she noted that Ramdas was lying on the ground in injured condition on the floor in the kitchen room having sustained bleeding injury to his chin and had deposed that, along with them other persons and PW-2 Rahul had assembled there. We, therefore, find that it is rightly submitted on behalf of the appellant that, from the evidence of PW-4 Kamlabai, presence of PW-2 Rahul as an eye witness is doubtful as from her evidence it reveals that after she witnessed the incident and went to her house to call her husband and returned back on the spot, she saw PW2 Rahul along with other persons. This fact has been further substantiated when, in her cross-examination, she has admitted that when she entered the house of accused along with her husband, she saw PW2 Rahul present along with others and that deceased Ramdas was lying on the ground in the kitchen room. Evidence of PW4 Kamlabai, therefore, dislodges the case of prosecution to rely that PW2 Rahul is eye witness to the incident. More so, neither of these witnesses attribute presence to each other at the time of incident, though they claim to have witnessed the same. 16. Evidence of PW4 Kamlabai, therefore, dislodges the case of prosecution to rely that PW2 Rahul is eye witness to the incident. More so, neither of these witnesses attribute presence to each other at the time of incident, though they claim to have witnessed the same. 16. In view of above discussed evidence of PW-4 Kamlabai though we find that PW-2 Rahul cannot be considered as an eye witness to the incident, we find no reason to not to rely on her evidence establishing assault by accused to his father which evidence goes unchallenged on all the material aspects as nothing could be elicited on the point of assault in her cross-examination. 17. Evidence of PW-4 Kamlabai is in fact materially found corroborated with the medical evidence as, from the evidence of PW6 Dr. Pramod, it has come on record that, on performing Post Mortem (Exh.53), he noted the following external injuries, which were ante mortem in nature : Injury No.1 :Contused lacerated wound of size 5 x 1 cm. over the right side of chin with fracture of mandible. Injury no.2 : Bleeding through left ear. 18. In the circumstances, from the evidence of PW-6 Dr. Pramod Potdar, deceased is found to have sustained one injury by way of contused lacerated wound on the right side of chin, which has resulted into fracture of mandible. According to Post Mortem notes, the probable cause of death is due to cardio respiratory arrest due to head injury. The deceased is certified to have sustained haematoma over left side of scalp. The head injury corroborates the version of eye witness PW4 Kamlabai when, apart from deposing that the deceased was assaulted by accused by fist and kick blows over his chin, she had deposed that the accused pushed his father due to which he fell down on the ground and shouted as “Melo reBappa”. The head injury, therefore, is apparently sustained by the deceased due to fall on ground as he was pushed by the appellant. 19. The head injury, therefore, is apparently sustained by the deceased due to fall on ground as he was pushed by the appellant. 19. Evidence of PW-3 Sindhubai wife of appellant corroborates version of PW1 Sunil about accused quarrelling on the issue of hiring of additional pair of bullocks and had deposed that, on her returning back home, he hurled abuses and beat her by fist and kick blows and also dragged her on the ground by pulling her hair due to which she sustained injury to her back and head and therefore, she went to hospital at Loni with one Manohar Shekhar (not examined) and on obtaining treatment, went to house of one Mohan Pachghare (not examined) where she stayed overnight and went to her house on the next day after death of her husband. PW3 Sindhubai as such is not an eye witness to the incident of assault by accused on deceased, but she had deposed about assault by him on her person. However, except for her version, there is no evidence in the manner of injury report, Doctor's evidence etc. to corroborate her evidence. No reason is putforth by prosecution for non-examination of Manohar Shekhar and Mohan Pachghare. As such, except for her version, there is nothing to establish that one day prior to the incident of assault on deceased, PW2 Sindhubai was assaulted by the appellant. In that view of the matter, we do not find evidence of PW3 Sindhubai to be sufficient in any manner to hold that she was assaulted by the appellant. 20. After considering the evidence adduced on record, thus we find that evidence of PW-4 Kamlabai is worthy to be relied upon who is admittedly not related to accused, but is neighbour and such an independent witness, from whose evidence, it is established that the appellant, after committing assault by fist and kick blows on the chin of deceased, pushed him, due to which he fell down and had sustained head injury which, according to evidence of PW-3 Dr.Pramod, is fatal as said head injury is cause of his death. 21. 21. In the circumstances, the question that arise for our consideration is if the case of appellant would fall under Section 302 of the Penal Code or for a lesser offence; for finding out nature of intention, one has to take into consideration the weapon used, manner in which it is used, nature of injury sustained, part of body hit, the amount of force applied and the circumstances, attendant upon death. 22. In the circumstances, we find it useful to rely upon the case of Surajit Sarkar vs. State of West Bengal reported in (2013) 2 SCC 146 . In the said case, from the evidence led on behalf of the prosecution, it was found that the deceased was assaulted by the accused with iron rod. The injuries sustained by the deceased could be seen from paragraph no.14 of the said Judgment which reads thus : “14. PW-9 Dr. Partha Sarathi confirmed the injuries on Gour Chandra Sarkar and stated that a hard, blunt weapon could have caused them. The injuries were : (1) 1 ½” cut mark over the right front parietal region. (2) ½” cut mark over the back of right parietal region. There were some abrasion marks over the right ear and right knee. He also found that the right parietal bone was fractured. The membrane and brain matter were ruptured. There were a fracture of the right 6th and 7th ribs and a fracture of the lower end of right radius and dislocation of the right elbow joint. In his cross-examination this witness stated that injuries (1) and (2) above may be caused by contact with a hard and blunt weapon and even by a fall.” Though the Apex Court found that there was shoddy and defective investigation, the court found that the accused was not entitled to acquittal. However, the Apex Court discussed as to whether offence under Section 302 of IPC was made out or not. It would be relevant to refer to paragraph no.64 of the said Judgment which reads thus : “64. Given the nature of injuries, it is difficult to accept the view that Surajit Sarkar intended to cause the death of Gour Chandra Sarkar or that the injuries were so imminently dangerous that they would, in all probability, cause death. The murder of Gour Chandra Sarkar would, therefore, be ruled out. Given the nature of injuries, it is difficult to accept the view that Surajit Sarkar intended to cause the death of Gour Chandra Sarkar or that the injuries were so imminently dangerous that they would, in all probability, cause death. The murder of Gour Chandra Sarkar would, therefore, be ruled out. Nevertheless, the injuries were quite serious and inflicted by Surajit Sarkar on Gour Chandra Sarkar's head with an iron rod, as stated by PW 8 Achintya Sarkar. We can surely credit Surajit Sarkar with the knowledge and if a person is hit with an iron rod on the head, then the act is likely to cause the death of the victim. That being so, in our opinion, it would be more appropriate to hold Surjit Sarkar guilty of an offence of culpable homicide not amounting to murder. Since we attribute to him the knowledge of his actions, he should be punished under the second part of Section 304 IPC. ” 23. In the case in hand, evidence shows that there was sudden quarrel or fight between the appellant and the deceased prior to the incident and there is nothing to hold that the appellant had taken any undue advantage or had acted in a cruel manner. The deceased had sustained single injury by way of fracture on mandible which is caused due to assault by kick and fist blows on the chin and is not attributed as cause of death of deceased, as the cause of death as stated aforesaid is the head injury sustained by deceased which is found to have caused when the deceased was pushed by appellant, due to which he fell down and sustained injury to his head. There is no other evidence sufficient to prove that the appellant committed murder of his father. As such, it cannot be said that the appellant had an intention to kill the deceased. If he had so, he would have repeated his assault, but what we find is that, on pushing the deceased, due to which he fell down, he was not further assaulted. In that view of the matter, we find that though it can be said that the appellant by his act had knowledge that the injuries caused would cause death of deceased, it cannot be said that prosecution has proved beyond reasonable doubt that the appellant had intention to kill the deceased. In that view of the matter, we find that though it can be said that the appellant by his act had knowledge that the injuries caused would cause death of deceased, it cannot be said that prosecution has proved beyond reasonable doubt that the appellant had intention to kill the deceased. Since we attribute the appellant with the knowledge of his actions, he is found guilty to be punished under Part II of Section 304 of the Indian Penal Code. 24. In that view of the matter, we find that conviction under Section 302 of the Indian Penal Code is not maintainable and the case of appellant would fall under part II of Section 304 of the Indian Penal Code. In the result, the appeal is partly allowed. The order of conviction under Section 302 of the Indian Penal Code is altered to Section 304II of the Indian Penal Code and the sentence is reduced from life imprisonment to seven years rigorous imprisonment.