JUDGMENT : M.G. GIRATKAR, J. 1. Appellant assailed the judgment of conviction in Sessions Trial No. 75/2015 awarded by learned Additional Sessions Judge, Achalpur by which he is convicted for the offence punishable under Section 302 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for life and to pay fine of Rs. 1,000/- in default to suffer rigorous imprisonment for two months. 2. The case of the prosecution against the appellant in short is as under. (i) Appellant was married. He was residing separately from his parent in the same house. Wife of appellant left matrimonial home before 1½ years before the incident. Appellant was not doing any work. He was harassing all the family members. On the day of incident i.e. on 19-5-2015 at about 10.00 p.m. appellant told his deceased brother Avinash to bring Jawar grains from the village, on that, deceased Avinash said to him that he would bring in next morning. (ii) Appellant went outside and came back under the influence of liquor. Appellant quarreled with Avinash. After the quarrel, appellant went outside the house. In the night, mother Nirmalabai was sleeping with Avinash on the cot. Father of Avinash was sleeping outside the house on bullock cart. At about 1.30 a.m. in the midnight, appellant came in the house and started beating Avinash by means of wooden stick. Mother Nirmalabai woke up due to noise. She saw bleeding injury on the head of Avinash due to assault by means of stick. She started shouting. Neighbours gathered there. Father of Avinash also rushed to the spot. After the incident, appellant ran away from the spot. (iii) Injured Avinash was taken to the Government Hospital, Daryapur by autorickshaw of Sunil Sangole. Doctor declared him brought dead. On the next day morning, complainant/mother of deceased, namely, Nirmalabai Sangole lodged the report, Exhibit 15 in Police Station, Khallar. Crime was registered against the appellant for the offence punishable under Section 302 of the Indian Penal Code. PSO Ingale investigated the crime. (iv) Investigating Officer went to the spot, prepared spot panchanama, prepared inquest panchanama of the dead body, seized blood stained clothes etc. Investigating Officer arrested the appellant on 20-5-2015. Appellant was having injuries. He was examined by the Medical Officer. As per the confessional statement of appellant, wooden stick was seized in presence of the panchas. (iv) Investigating Officer went to the spot, prepared spot panchanama, prepared inquest panchanama of the dead body, seized blood stained clothes etc. Investigating Officer arrested the appellant on 20-5-2015. Appellant was having injuries. He was examined by the Medical Officer. As per the confessional statement of appellant, wooden stick was seized in presence of the panchas. After complete investigation, Investigating Officer filed chargesheet before the Judicial Magistrate First Class, Daryapur which in turn committed to the Court of Sessions for trial. (v) Learned trial Court framed charge at Exhibit 3. Same was readover and explained to the appellant. He pleaded not guilty and claimed to be tried. Defence appears to be of total denial. (vi) Learned trial Court recorded the evidence of following witnesses. (1) P.W. 1 Siddarth Ramesh Wankhade (Exhibit 12) (2) P.W. 2 Nirmalabai Onkarrao Sangole (Exhibit 14) (3) P.W. 3 Dhnyaneshwar s/o Wamanrao Sangole (Exhibit 19) (4) P.W. 4 Gopal Ramdasji Kandalkar (Exhibit 22) (5) P.W. 5 Dr. Vaibhav Prabhakar Kolkhede (Exhibit 28) and (6) P.W. 6 Ashish Suresh Ingale (Exhibit 31) (vii) Learned trial Court recorded statement of accused/appellant under Section 313 of Code of Criminal Procedure. He has denied material incriminating evidence against him. He has stated that his relation with P.W. 2 (mother) was not cordial, therefore, she deposed against him. After hearing the prosecution and defence, learned trial Court convicted the appellant for the offence punishable under Section 302 of the Indian Penal Code as stated above. 3. Heard learned counsel Shri R. P. Thote for the appellant. He has submitted that there was quarrel between appellant and deceased. Deceased fell down and sustained injuries. He has pointed out evidence of P.W. 5, Medical Officer Dr. Kolkhede. Doctor has admitted that injuries mentioned in column no. 17 of the postmortem report, Exhibit 29 may be possible due to fall of a person on hard and blunt object. Learned counsel has submitted that deceased fell down during the scuffle and sustained injuries. Evidence of P.W. 2 is not reliable. Other material witnesses not examined by the prosecution. Seizure panchanama of stick is not reliable in view of the cross-examination of the panch witness. Learned counsel has pointed out C.A. reports and submitted that wooden stick was not having blood of deceased. 4. Learned counsel for the appellant has submitted that appellant and deceased beat each other. Other material witnesses not examined by the prosecution. Seizure panchanama of stick is not reliable in view of the cross-examination of the panch witness. Learned counsel has pointed out C.A. reports and submitted that wooden stick was not having blood of deceased. 4. Learned counsel for the appellant has submitted that appellant and deceased beat each other. After the arrest, Investigating Officer found injuries on the person of appellant. He was examined by the Medical Officer. Copy of medical certificate is at Exhibit 33. It shows that appellant sustained seven injuries. Prosecution has not explained the injuries on the person of appellant. Learned counsel has submitted that the prosecution has suppressed the material evidence. 5. Learned counsel Shri Thote has submitted that there was quarrel between appellant and deceased. Both beat each other. There was no any intention on the part of appellant to commit murder of his brother, at the most, appellant can be convicted for the offence punishable under Section 304 Part II of the Indian Penal Code. In support of his submission, he pointed out decision of the Apex Court in the case of Vijay Pandurang Thakre and others Vs. State of Maharashtra reported in (2017) 2 SCC (Cri) 356. Learned counsel has pointed out other judgments of the Apex Court and submitted that testimony of P.W. 2 is not reliable. 6. Heard learned Additional Public Prosecutor Shri Deshpande for the State/respondent. He has supported the impugned judgment. Learned Additional Public Prosecutor has submitted that P.W. 2 mother has specifically stated against the appellant that in the night, appellant beat deceased by stick and committed murder. There is no reason to disbelieve her evidence. The stray admissions in her cross-examination are not sufficient to disbelieve her evidence. As per the evidence of Medical Officer, P.W. 5 Dr. Kolkhede, deceased died of homicidal death. He found four injuries. As per his opinion, cause of death was due to head injury. Medical Officer Dr. Kolkhede examined stick and opined that injuries on the head of deceased can be possible by stick. He had identified the said stick before the Court which was examined by him on the request of the Investigating Officer. 7. Learned Additional Public Prosecutor has submitted that evidence of P.W. 2 is well corroborated by the evidence of P.W. 3 Dhnyaneshwar Sangole. He had identified the said stick before the Court which was examined by him on the request of the Investigating Officer. 7. Learned Additional Public Prosecutor has submitted that evidence of P.W. 2 is well corroborated by the evidence of P.W. 3 Dhnyaneshwar Sangole. He has stated in his evidence that at about 10.00 p.m. appellant quarreled with his brother. In the night, he was called by P.W. 2. He saw injured Avinash lying on the cot. Blood was oozing from his ear. He had taken injured to the hospital at Daryapur. The stick which was used by appellant at the time of incident was seized as per his confessional statement, Exhibit 23. Appellant himself produced the stick from the room of his house. It was seized as per seizure panchanama, Exhibit 24. 8. Learned Additional Public Prosecutor has submitted that Medical Officer has opined that injuries on the head of deceased can be caused by that stick. Learned Additional Public Prosecutor has submitted that appellant beat deceased mercilessly with an intention to kill and, therefore, he is rightly convicted for the offence punishable under Section 302 of the Indian Penal Code. 9. Perused the evidence. From the evidence of P.W. 2 Nirmalabai Sangole, it is clear that in the night of incident, appellant quarreled with his brother at about 10.00 p.m. He directed his brother to bring Jawar from the village. Deceased told him that he would bring in the next day morning. Appellant went outside, came under the influence of liquor and quarreled with deceased. After the quarrel was over, appellant went outside. 10. Deceased was sleeping with his mother Nirmalabai on cot. At about 1.30 a.m. appellant came and started beating to Avinash by means of stick. P.W. 2 woke up and saw the head injury of deceased. Blood was oozing. She started shouting. She brought father of deceased on the spot who was sleeping outside the house. Neighbours also gathered there. Panjab ran away from the spot of incident. On the next day, deceased was taken to the hospital at Daryapur. Medical Officer declared him brought dead. 11. On 20-5-2015, P.W. 2 went to Police Station, Khallar and lodged report, Exhibit 15. Crime was registered on her report vide Exhibit 16. In her cross-examination, she has admitted that appellant was not doing any work for earning. On the next day, deceased was taken to the hospital at Daryapur. Medical Officer declared him brought dead. 11. On 20-5-2015, P.W. 2 went to Police Station, Khallar and lodged report, Exhibit 15. Crime was registered on her report vide Exhibit 16. In her cross-examination, she has admitted that appellant was not doing any work for earning. He was harassing all the family members, therefore, her relations with appellant was strained. Appellant was residing separately in the same house. Deceased Avinash and they both parents were residing separately. 12. P.W. 2 has admitted in cross-examination that quarrel between appellant and deceased Avinash took place in the night of incident. Appellant and deceased both beat each other. Beating was going on for half an hour. Appellant also sustained injuries on his person. When she woke up in the night at about 1.30 a.m., she saw appellant while going out of the house. She has admitted that she has not seen the appellant while assaulting deceased by means of stick. 13. Learned counsel for the appellant pointed out admission of P.W. 2 and submitted that appellant not beat the deceased. It is pertinent to note that P.W. 2 is the real mother of appellant and deceased. She had only two sons and she lost one son and now, the appellant is the only son. Her demeanor was noted by the Court. When she was deposing before the Court, she was weeping and, therefore, further evidence was deferred. There is nothing in her evidence to disbelieve her testimony. Her stray admission cannot be taken against the prosecution. 14. P.W. 3 has stated that there was quarrel between appellant and his deceased brother in the night at about 10.00 p.m. Quarrel was going on in his presence. Thereafter he went to his house and slept. In the night, he was called by the parents of Avinash. He saw Avinash sleeping on the cot. Blood was oozing from his ear. He had taken injured Avinash to Daryapur Hospital by his auto. He was declared dead by Medical Officer. 15. Evidence of P.W. 2 is well supported by the evidence of P.W. 5 Medical Officer Dr. Kolkhede. As per the evidence of Medical Officer, Shri Kolkhede, cause of death was head injury. P.W. 2 has stated in her evidence that appellant beat deceased by wooden stick on his head. Seized clothes, blood and stick etc. 15. Evidence of P.W. 2 is well supported by the evidence of P.W. 5 Medical Officer Dr. Kolkhede. As per the evidence of Medical Officer, Shri Kolkhede, cause of death was head injury. P.W. 2 has stated in her evidence that appellant beat deceased by wooden stick on his head. Seized clothes, blood and stick etc. were sent to Chemical Analyser, Amravati. Copy of C.A. reports are at Exhibit Nos. 9 and 10. As per Exhibit 9, stick was stained with human blood. The clothes of appellant were also stained with blood but blood group was not determined. 16. The evidence of P.W. 2, P.W. 3 and P.W. 5 show that deceased died of homicidal death. Deceased died because of injuries caused by appellant by means of stick. As per the confessional statement, Exhibit 23, appellant produced stick from his house. It was seized as per the seizure panchanama, Exhibit 24. The said stick was sent to Medical Officer along with query letter and he opined that injuries found on the dead body/head of deceased can be caused by the said stick. 17. Prosecution has proved that appellant killed deceased by wooden stick. There is no dispute that there was quarrel between appellant and deceased. In the quarrel, both beat each other. P.W. 2, mother of victim and appellant has stated in her evidence that at the time of incident, appellant Panjab and deceased Avinash both had beaten each other. Beating was going on for half an hour. During the quarrel, appellant sustained injuries. This particular evidence of P.W. 2 is well supported by the evidence of P.W. 6, Investigating Officer Shri Ingale. He has stated that during the investigation, injuries were found on the body of appellant. He had referred appellant for medical examination. Copy of injury certificate is at Exhibit 33. 18. Appellant had sustained seven injuries on his person. It is clear from the evidence of P.W. 2 that incident took place in the night between appellant and deceased. Both beat each other. But there is no any evidence to show that deceased was having any weapon like stick etc. On other hand, appellant was aggressor. 19. From the evidence of P.W. 2, mother of appellant, it is clear that there was no previous enmity between appellant and his deceased brother. Quarrel took place on trivial ground. Appellant directed his brother to bring Jawar from the village. On other hand, appellant was aggressor. 19. From the evidence of P.W. 2, mother of appellant, it is clear that there was no previous enmity between appellant and his deceased brother. Quarrel took place on trivial ground. Appellant directed his brother to bring Jawar from the village. He did not listen him and said him that he would bring it on the next morning therefore, there was quarrel. Appellant had no any intention to kill deceased. There was quarrel between appellant and deceased. Both beat each other. Appellant beat deceased by stick. Unfortunately, one of the blow landed on the head of deceased, therefore, deceased died. 20. In the case of Vijay Pandurang Thakre and others Vs. State of Maharashtra (cited supra), Hon'ble Apex Court has observed that “in scuffle that took place, one blow inflicted on head of deceased which proved fatal, and none other on any other vital part – Accused armed only with ubharis and not carrying any deadly weapons – No injury caused on any vital part of any other injured person. Therefore, it is held that appellant/accused can be held liable for the conviction for the offence punishable under Section 304 Part II of the Indian Penal Code.” 21. In the present case, appellant and deceased quarreled with each other. Both sustained injuries. Appellant also sustained seven injuries as per Exhibit 33. Appellant beat deceased by stick. He had no intention to kill deceased, therefore, he used the simple stick. The incident took place due to the quarrel between appellant and deceased. Hence in view of the judgment of the Apex Court, appellant is liable to be convicted for the offence punishable under Section 304 Part II of the Indian Penal Code. Therefore, we come to the conclusion that learned trial Court wrongly convicted the appellant for the offence punishable under Section 302 of the Indian Penal Code instead of Section 304 Part II. In the result, we pass the following order. ORDER (i) The criminal appeal is partly allowed. (ii) The impugned judgment of conviction is hereby quashed and set aside. Appellant is acquitted of the offence punishable under Section 302 of the Indian Penal Code, instead, he is convicted for the offence punishable under Section 304 Part II of the Indian Penal Code and sentenced to suffer rigorous imprisonment for five years. (ii) The impugned judgment of conviction is hereby quashed and set aside. Appellant is acquitted of the offence punishable under Section 302 of the Indian Penal Code, instead, he is convicted for the offence punishable under Section 304 Part II of the Indian Penal Code and sentenced to suffer rigorous imprisonment for five years. (iii) Appellant is entitled for set off for the period undergone in jail. (iv) Muddemal property, being worthless, be destroyed after appeal period. (v) R & P be sent back to the trial Court. (vi) Fees of the learned counsel Shri Thote appointed for the appellant is quantified at Rs. 5,000/-.