JUDGMENT : V.M. DESHPANDE, J. 1. By the present appeal, the appellant is challenging the judgment and order of conviction passed by the learned Additional Sessions Judge, Nagpur in Sessions Case No. 263 of 2017 on 14.5.2018. By the impugned judgment and order of conviction, the appellant stands convicted for the offence under Section 304 Part-I of the Indian Penal Code and is directed to suffer rigorous imprisonment for Ten years and to pay a fine of Rs. 10,000/- and in default of payment of fine to suffer rigorous imprisonment for three months. 2. I have heard Mr. C.R. Thakur, the learned counsel for the appellant and Mr. A.M. Joshi, the learned Additional Public Prosecutor for the State. They took me through the entire record and proceedings and they also read out the evidence of all the prosecution witnesses in detail. 3. It is the submission of Mr. Thakur, the learned counsel for the appellant that looking to the injury appearing on the deceased, the appellant ought not to have been sentenced to suffer imprisonment for Ten years. He has also submitted that the prosecution has not proved the intention on the part of the appellant to commit murder and therefore, he prayed that this Court should pass the suitable orders. 4. Per contra, Mr. Joshi, the learned Additional Public Prosecutor for the State would submit that the death has occurred due to excessive bleeding and therefore, in view of the evidence of Dr. Vishwajeet Wankhede (PW-6), the Court below has rightly convicted the appellant for the offence punishable under Section 304-I of the Indian Penal Code and correctly inflicted measured punishment of Ten years. He, therefore, prays that the appeal be dismissed. 5. The prosecution case starts in view of the Sana entry No. 61 recorded at Police Station, Kalamna at 21.40 hours (Exh.67). This entry is duly proved by PW-10 PSI Shyam Sonparote, the Investigating Officer. The said entry shows that an information was received from Police Wireless Center that at Chikhali Jalit zopadpatti one person is assaulted by means of knife. On getting this information, as per sana entry, PW-10 PSI Sonparote along with police staff visited Chikhali Jalit zopadpatti to notice pool of blood and during the enquiry there, it was revealed to him that appellant Mahesh assaulted Gautam Madhukar Raut and the said injured is taken to Mayo Hospital for treatment. On getting this information, as per sana entry, PW-10 PSI Sonparote along with police staff visited Chikhali Jalit zopadpatti to notice pool of blood and during the enquiry there, it was revealed to him that appellant Mahesh assaulted Gautam Madhukar Raut and the said injured is taken to Mayo Hospital for treatment. The entry reveals that PW-10 PSI Sonparote conducted the spot panchanama and directed to search the accused and returned to police station. 6. As per the prosecution case, PW-10 PSI Sonparote made various seizures from the spot and also prepared the spot panchanama (Exh.11). When he reached to the police station, thereafter Pooja Bharati (PW-1) approached to the police station and lodged her oral report (Exh.8). It is dated 14.02.2017. The gist of the first information report is that on 14.2.2017 at about 6.30 pm when the first informant had been to her mother's house, that time her elder sister Sheetal Bagade, others and Gautam were present. After eating the eatables, Gautam left the house. After some time her younger sister Aachal (PW-7) came weeping and informed the first informant that somebody assaulted on Gautam and there is a bleeding from his thigh. On getting this information, the first informant Pooja went there to notice oozing of blood from left thigh of Gautam and he was sitting there. On being asked, as per the first information report, Gautam intimated Pooja that Mahesh Gondare (the appellant) has assaulted him by means of knife. Thereafter, the first informant called Rakesh Gillor (PW-8), who at the said time was proceeding on his motorcycle, for help. Thereafter, Rakesh and his friend Ankit Chouhan took Gautam on motorcycle to Mayo Hospital for treatment, however, there he was declared brought dead. According to the first information report, prior to six months, there was a quarrel in between the appellant and the deceased on some trifle issue and therefore, the matter was not reported to the police. 7. After getting the aforesaid oral report, PW-10 PSI Sonparote registered the first information report vide Crime No. 64/2017 for the offence punishable under Section 302 of the Indian Penal Code. After registration of the crime, further investigation was carried out by PW-11 Narsinh Analdas, PSI. He visited the mortuary of Indira Gandhi Medical College (IGMC) and Hospital, Nagpur i.e. Mayo Hospital and conducted inquest over the dead body. The inquest panchanama is at Exh.12. After registration of the crime, further investigation was carried out by PW-11 Narsinh Analdas, PSI. He visited the mortuary of Indira Gandhi Medical College (IGMC) and Hospital, Nagpur i.e. Mayo Hospital and conducted inquest over the dead body. The inquest panchanama is at Exh.12. He also sent the dead body for post mortem. On 15.2.2017, the appellant was arrested under arrest panchanama (Exh.18). When the appellant was in police custody remand, he gave disclosure statement to police. The admissible portion of his memorandum statement is at Exh.29, whereby he agreed to show the place where he has concealed the weapon as well as his clothes. Accordingly, the weapon and clothes were seized under recovery panchanama (Exh.30) and those were sealed on the spot itself. The Investigating Officer also seized the clothes of the deceased under seizure memo (Exh.29) and blood of the accused obtained from the Medical Officer was seized under seizure memo (Exh.22). The Investigating Officer also under requisition (Exh.34) sent the weapon for obtaining the opinion of the doctor (PW-6 Dr. Vishwajeet Wankhede). The report was given by the doctor and it is available at Exh.35. The seized articles were sent to the Chemical Analyzer by the Investigating Officer under requisition (Exh.61) and the Chemical Analyzer's reports are available on record at Exh.26(1) to 26(3). The statements of the witnesses were also recorded by the Investigating officer. After completion of all other usual investigation, the Investigating Officer presented the challan in the Court of jurisdictional Magistrate. The learned Magistrate found that the offence is exclusively triable by the Court of Sessions and therefore, he committed the case to the said Court. After the committal, case was registered as Sessions Case No. 263 of 2017. The learned Additional Sessions Judge, below Exh.3, framed the Charge against the appellant for the offence punishable under Section 302 of the Indian penal Code. The appellant abjured his guilt and claimed for his trial. In order to bring home the guilt of the appellant, the prosecution has examined in all eleven witnesses and also relied upon various proved documents. 8. After the full dressed trial and after appreciation of the prosecution case, the learned Judge of the Court below found that the appellant cannot be convicted for the offence punishable under Section 302 of the Indian Penal Code. 8. After the full dressed trial and after appreciation of the prosecution case, the learned Judge of the Court below found that the appellant cannot be convicted for the offence punishable under Section 302 of the Indian Penal Code. Accordingly, he acquitted the appellant for the offence punishable under Section 302 of the Indian Penal Code, however, according to the learned Judge of the Court below, the appellant can be convicted for the offence punishable under Section 304 Part-I of the Indian Penal Code and accordingly, he was convicted and was inflicted punishment of undergoing rigorous imprisonment of Ten years and payment of fine of Rs. 10,000/-. 9. Though, the appellant was acquitted for the offence punishable under Section 302 of the Indian Penal Code, the State did not prefer any appeal challenging his acquittal from the said offence. It is the appellant who is questioning the wisdom of the Court below sentencing him for rigorous imprisonment for Ten years for the offence punishable under Section 304 Part-I of the Indian Penal Code. 10. The incident in question is dated 14.2.2017. The first information report is also lodged on 14.2.2017 with Police Station, Kalamna, Nagpur. The incident, according to the prosecution, has occurred in between 6.30 to 7.00 O'clock in the evening. The information about the crime was received at Police Station at 19.10 hours. Thus, it is clear that the first information report was promptly registered. In the first information report itself, the name of the appellant is disclosed as assailant. 11. Though, first informant Pooja Bharti (PW-1), the sister of deceased Gautam lodged the first information report promptly, she is not an eyewitness to the occurrence. 12. The prosecution has examined Ambar More (PW-4), who is also panch in respect of seizure panchanama of clothes of accused and arrest panchanama and was also examined as eyewitness. PW-8 Rakesh Gillor, who took deceased Gautam initially to Shreyas Hospital, situated at H.B. Town, Pardi and from there to Mayo Hospital, was also examined as an eyewitness. However, both these witnesses have turned hostile. As per the prosecution case, the deceased prior to taking his last breathe, made oral dying declaration to two of his sisters namely PW-1 Pooja Bharti, the first informant and PW-7 Aachal Raut. However, both these witnesses have turned hostile. As per the prosecution case, the deceased prior to taking his last breathe, made oral dying declaration to two of his sisters namely PW-1 Pooja Bharti, the first informant and PW-7 Aachal Raut. Their evidence show that when they found their brother in profused bleeding condition on the ground, on their enquiry, he disclosed to them that it is the appellant who has assaulted on him by means of knife. Though, Mr. Thakur, the learned counsel for the appellant vehemently submitted that the oral dying declaration given to these two witnesses cannot be accepted for the reasons that (1) they are the close relatives of the deceased and (2) the recitals in the first information report itself contradicts Pooja that there could be any oral dying declaration to her. It is also the submission of the learned counsel for the appellant that if the cross-examination of PW-7 Aachal is seen, then, she has admitted in the cross-examination that Gautam's condition was serious and though she asked for water to him, he could not take the water. 13. Merely because the prosecution witnesses are closely related and/or interested witnesses, that by itself is not sufficient to discard the evidence of such prosecution witnesses, if otherwise the testimony of such witnesses inspires confidence and has corroboration from the attending circumstances. Since, it is the cardinal rule of law that while appreciating or considering the evidence of close and/or relative witnesses, the Court should search for corroboration to their testimonies from the attending circumstances. 14. No doubt true that the first information report firstly recites that Aachal (PW-7) was shouting and informed Pooja (PW-1) that somebody has assaulted on Gautam, however, if the later part of the first information report is properly scrutinized, then it would reveal that on getting such information, Pooja went near Gautam and at that time he was in sitting condition and at that time Pooja made enquiry about the assault on him and that time it was revealed to her by Gautam that the appellant is a person, who has assaulted on him. 15. If the evidence of PW-7 Aachal Raut is evaluated in its correct perspective, in my view, she is the witness who can be believed without there being any iota of suspicion in mind. 15. If the evidence of PW-7 Aachal Raut is evaluated in its correct perspective, in my view, she is the witness who can be believed without there being any iota of suspicion in mind. Her evidence would show that after sharing the eatables with Aachal, deceased left the house and proceeded towards the shop of one Bengali. That time she was with her brother. Thereafter, Gautam went away from the house by saying that he will return back within a minute. At that time, her mother asked her to purchase some articles and therefore, she proceeded towards the shop of said Bengali. At that time, she noticed her brother was coming there in injured condition and sat on the ground and at that time she made enquiry with him upon which it was revealed to her that it is the appellant who has assaulted on him by means of knife. Thus, it is crystal clear that the deceased on his foot proceeded, may be for short distance and therefore, must be in a condition to speak. Therefore, merely because in her cross-examination PW-7 Aachal admits that since the condition of his brother was serious, therefore, he did not take water, that does not mean that it was impossible for him prior to that particular state of time to disclose the name of the appellant as assailant on the inquiry made by Aachal. In view of the aforesaid, there is no doubt in my mind that the deceased gave oral dying declaration to this witness implicating the appellant. 16. Though, the prosecution has examined Maya Raut (PW-9), the mother of the deceased, her evidence is hardly relevant to decide the present appeal, since her evidence shows that she is a hearsay witness. 17. During the course of the investigation, the appellant gave his statement in presence of Gendlal Dudhbaware (PW-5) to the Investigating Officer on 17.2.2017. The admissible portion of his statement recorded under Section 27 of the Evidence Act is at Exh.29. In pursuance to the said statement, police party in presence of panch witnesses had been to the place shown by the appellant from where the appellant took out a weapon i.e. large knife, having blood stains. Similarly, his pant and shirt were also taken out by him from the said place. The said recovery panchanama is at Exh.30. In pursuance to the said statement, police party in presence of panch witnesses had been to the place shown by the appellant from where the appellant took out a weapon i.e. large knife, having blood stains. Similarly, his pant and shirt were also taken out by him from the said place. The said recovery panchanama is at Exh.30. The recitals of the panchanama would show that the seized articles were sealed at the spot itself. At this stage, it would be useful to refer the recitals of Exh.30 in respect of blood stains on the seized articles. Exh.30 specifically recites that there were blood stains on the weapon i.e. large knife. However, Exh.30 is conspicuously silent in respect of noticing blood stains on the clothes of the appellant/accused. The Chemical Analyser's report is at Exh.26(1). It shows that human blood was found on the weapon, however, there were no blood stains on the clothes of the appellant. 18. Seizure of the clothes and weapon from the place as disclosed by the appellant, in my view, is a corroborative piece of evidence in the prosecution case. 19. The important question that the Court is required to answer in the present appeal is whether the Court below was right in convicting the appellant for the offence punishable under Section 304 Part-I of the Indian Penal Code. 20. While acquitting the appellant for the offence punishable under Section 302 and convicting him for the offence punishable under Section 304 Part-I of the Indian Penal Code, the learned Judge of the Court below found that the present case squarely falls in Exception No. 4 of Section 300 of the Indian Penal Code. According to the learned Judge of the Court below, even as per the prosecution case, as it could be seen from the contradictions proved by the Investigating Officer which are at Exhibits 64, 65 and 66, the dispute arose between the appellant and the deceased on account of smoking of 'Ganja' and without there being any premeditation, the appellant assaulted on the deceased and he, therefore, convicted the appellant for the offence punishable under Section 304 Part-I of the Indian Penal Code. It would be useful to reproduce Part-I of Section 304 of the Indian Penal Code, which reads as under: “304. It would be useful to reproduce Part-I of Section 304 of the Indian Penal Code, which reads as under: “304. Punishment for culpable homicide not amounting to murder Whoever commits culpable homicide not amounting to murder, shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death.........” 21. Examination of the aforesaid would reveal that whoever commits culpable homicide not amounting to murder, if the act by which the death is caused, is done with the intention of causing death or of causing such bodily injury as is likely to cause death. So while convicting an accused for the offence punishable under Section 304 Part-I, primarily it is the duty of the Court to record a finding about the intention. There could be a direct or indirect evidence in respect of intention. However, it is very difficult to gather direct evidence on the intention as the intention is always in the mind of the perpetrator of the crime. However, it is always open for the Court to record a finding in respect of the intention, after examining the prosecution case minutely and the Court could record a finding that the intention can be gathered from the attending circumstances. Part of the body chose for the assault while inflicting the deadly blow on the deceased is indicator by which the Court could record a finding that the assault was having an intention to commit culpable homicide not amounting to murder or causing such bodily injury which is likely to cause death. 22. In the present case, therefore, this Court is required to scan the medical evidence with close scrutiny. PW-6 Vishwajeet Wankhede on 15.2.2017 was on post mortem examination duty at Indira Gandhi Medical College and Hospital, Nagpur. On the said day, dead body of Gautam was brought to him by a Police Constable of Kalamna Police Station. Accordingly, PW-6 Dr. Wankhede conducted post mortem on the dead body. He found following three injuries: (i) Stab wound of size 2.2 cm x 0.8 cm, muscle deep noted over the left thigh region anteriorly in the upper one third region and is obliquely present. Accordingly, PW-6 Dr. Wankhede conducted post mortem on the dead body. He found following three injuries: (i) Stab wound of size 2.2 cm x 0.8 cm, muscle deep noted over the left thigh region anteriorly in the upper one third region and is obliquely present. Margins of the wound are clean cut and angles are acute. Medial end of the wound is placed lower than the lateral end. Medical end is situated 5 cm from the pubic tubercle and lateral end is situated 13 cm from left anterosuperior iliac spine. Infiltration of blood at wound edges noted. On dissection, wound is directed posteromedially and length of the wound track is 5.5 cm with infiltration of blood. Transection of femoral artery and femoral vein noted. (ii) Abraded contusion of size 4 cm x 3 cm with peeling of skin, dark red in colour noted over the first two toes bilaterally. Nail on right side of first toe broken from midline obliquely. (iii) Incised wound of size 0.6 cm x 0.2 cm, margins clean cut, subcutaneous deep noted over the lateral aspect, proximal phalynx of the right index finger. Infiltration of blood at incised margins noted. According to the doctor, these injuries were ante mortem injuries and injury no. 1 is individually sufficient to cause death in normal course. The post mortem report is available at Exh.33 and the probable cause of death in the opinion of the doctor was “shock due to hemorrhage.” According to PW-6 Dr. Wankhede, injury nos. 2 and 3 are not more significant. Except the stab wound of size 2.2 cm x 0.8 cm muscle deep over the left thigh region, no injury was found. No internal injuries were found by the doctor when for post mortem purpose, he opened the dead body. According to the doctor, at the side of injury, femoral artery and vein are of large size and due to transection of those artery and vein, profused bleeding occurred resulting into death. 23. There cannot be any dispute that normally thigh cannot be considered as a vital organ. It is also not expected to a person, who is not medically trained of knowing about the situation of artery and large vein and the transection at a particular place of the thigh. 24. 23. There cannot be any dispute that normally thigh cannot be considered as a vital organ. It is also not expected to a person, who is not medically trained of knowing about the situation of artery and large vein and the transection at a particular place of the thigh. 24. In my view, had there was an intention on the part of the appellant to cause death when opportunity was available with him, in the sense, he was armed with deadly weapon, he could have chose a vital party of the body of deceased Gautam. Not inflicting the blow of deadly weapon on the vital part of the body of the deceased, in my view, is a clearcut indication that it was never the intention on the part of the appellant to cause death. Since, as observed in preceding lines, unless a person is medically trained, it would be impossible for a person to know that there is transection of femoral artery and large vein at the site of injury, which may result in excessive bleeding causing death. Also, in my view, releases such person from the Second Part of Part-I of Section 304 of the Indian Penal Code. In view of the aforesaid, there is no hesitation in my mind to record a finding that the appellant cannot be held guilty for the offence punishable under Section 304 Part-I of the Indian Penal Code. In that behalf, it would be useful to refer here the observations of the Hon'ble Apex Court in the case of Para Seenaiah and Another vs. State of Andhra Pradesh and Another, (2012) 3 SCC (Cri) 318 : (2012) 6 SCC 800 , along with the connected appeal. In the said case, there was a political rivalry between the deceased and the assailants and on the day of the incident there, the assailants chased the deceased and caused multiple injuries including fracture injuries on his forearm and legs. Initially a crime was registered against the accused persons mainly for the offence punishable under Section 307 of the Indian Penal Code, however, after the death of the injured, said was converted in to offence punishable under Section 302 read with Section 149 of the Indian Penal Code. In the said case, the learned Judge of the Trial Court acquitted some of the accused persons, except accused nos. In the said case, the learned Judge of the Trial Court acquitted some of the accused persons, except accused nos. 1, 2 and 4 and convicted them for the offence punishable under Section 326 of the Indian Penal Code. Aggrieved by the said, those convicts preferred an appeal before the High Court so also the State of Andhra Pradesh preferred an appeal questioning their acquittal for the offence for which they were charged. Also a criminal revision was filed by the original complainant. Before the High Court also conviction for the offence punishable under Section 326 was confirmed by dismissing the revision as well as the State appeal. Ultimately, the said was taken to the Hon'ble Apex Court, in which the Hon'ble Apex Court upheld the conviction only under Section 326 IPC, by observing in paragraph 16 that “the trial Court also recorded a finding that since the accused had caused injury only on the non-vital part of the body of the deceased, there was no intention to do away with his life.” 25. It will be also useful to refer to the another decision of this Court in the case of Prakash S/o Wamanrao Lakde vs. State of Maharashtra, 2004 All MR (Cri) 3237. In the said, this Court found that conviction under Section 304 Part I of the Indian Penal Code cannot be sustained on the ground that “apart from that, having regard to the situation of the location of internal damage, no knowledge could be attributed to the appellant even though it is accepted that he inflicted excessive blows with the knife on the thighs of the victim.” 26. In the present case, there was only one blow and not the blows, as found in Prakash Lakde's case (cited supra). Section 326 of the Indian Penal Code deals with Voluntarily causing grievous hurt by dangerous weapon or means. Section 326 reads as under: “326. In the present case, there was only one blow and not the blows, as found in Prakash Lakde's case (cited supra). Section 326 of the Indian Penal Code deals with Voluntarily causing grievous hurt by dangerous weapon or means. Section 326 reads as under: “326. Voluntarily causing grievous hurt by dangerous weapons or means – Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.” 27. In the present case, the weapon that was used by the appellant was a large knife. Further, there is ample evidence that the appellant has used such weapon for giving blow though on the non-vital part of the body. Therefore, in my view, in the present case, the appellant can be suitably convicted for the offence punishable under Section 326 of the Indian Penal Code in stead of Section 304 Part-I of the Indian Penal Code as punished by the Court below. 28. The conspectus of the aforesaid discussion leads me to pass the following order: ORDER 1. The criminal appeal is partly allowed. 2. The judgment and order of conviction passed by the learned Additional Sessions Judge, Nagpur in Sessions Case No. 263 of 2017 on 14.5.2018 convicting the appellant for the offence punishable under Section 304 Part-I of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for Ten years is hereby set aside. 3. In stead, the appellant, who is in jail since 15.2.2017 stands convicted for the offence punishable under Section 326 of the Indian Penal Code and for that he shall suffer rigorous imprisonment for Five years. 4. However, the sentence of fine imposed on the appellant by the Court below is maintained. 5. 3. In stead, the appellant, who is in jail since 15.2.2017 stands convicted for the offence punishable under Section 326 of the Indian Penal Code and for that he shall suffer rigorous imprisonment for Five years. 4. However, the sentence of fine imposed on the appellant by the Court below is maintained. 5. After completion of rigorous imprisonment of Five years and after payment of fine of Rs. 10,000/- the appellant if not required in any other crime, will have to be released from jail. 6. With this, the appeal is partly allowed and disposed of.