JUDGMENT Rohit B. Deo, J. - The appellant - accused is assailing the judgment and order dated 26.4.2017 rendered by Additional Session Judge, Achalpur in Session Trial 93 of 2015 by and under which, the accused is convicted for offence punishable under section 302 of the Indian Penal Code ("IPC") and sentenced to suffer imprisonment for life and to payment of fine of Rs. 5,000/-. 2. We have heard the learned counsel Shri Rishb Khemuka for the accused and Shri C.A.Lokhande, the leaned Additional Public Prosecutor for respondent / State. Shri Rishabh Khemuka, would submit that the prosecution has not proved the offence beyond reasonable doubt, and in the alternate, submits that the accused can be convicted, if at all, not for offence punishable under section 302 of the IPC but for lesser offence. Per contra, the learned Additional Public Prosecutor Shri C.A. Lokhande, supports the judgment and order impugned. The learned Additional Public Prosecutor Shri C.A.Lokhande would submit that the testimony of three eye-witnesses prove beyond doubt that the accused assaulted his wife Nirmala mercilessly with a heavy wooden stick. The testimony of the eye-witnesses is not shaken in the cross-examination. The medical evidence on record and the fact that the wooden stick with human blood-stains was recovered pursuant to confessional statement under section 27 of the Indian Evidence Act corroborate the ocular evidence, is the submission. 3. The prosecution case : Police Patil of village Jamli - Shri Totaram Bhusum reported to Police Station Chikhaldara that on 21.8.2015 at 1.00 p.m. he received information from a resident of the village one Ramratan Belsare that his relative Nirmala Atmaram Belsare was found dead in the house, pursuant to which the police patil visited the house of Atmaram Belsare and noticed that the body of Nirmala was lying on the floor inside the house. 3.1 Inquiry under section 174 of the Code of Criminal Procedure was initiated. On 23.8.2015, the brother of the deceased Tatu Panse lodged report at the Chikhaldara Police Station, the gist of which is thus: 3.2 Nirmala married one Shivprasad Kale r/o. Somwarkheda 10 years ago and from the wedlock three children were born. 2 years ago Nirmala left the company of her husband and married Atmaram Belsare with whom she was in a relationship. One Vishwanath Borkar telephonically informed Tatu Panse on 21.8.2015 that his sister Nirmala is admitted in the Achalpur hospital. 2 years ago Nirmala left the company of her husband and married Atmaram Belsare with whom she was in a relationship. One Vishwanath Borkar telephonically informed Tatu Panse on 21.8.2015 that his sister Nirmala is admitted in the Achalpur hospital. Tatu Panse went to the Achalpur hospital and found that the dead body of Nirmala was kept in the post-mortem room. Injuries were visible on the body. Tatu Panse inquired with the villagers and the Police Patil and learnt that on the day of Nagpanchami, Nirmala was mercilessly assaulted by the accused and she expired due to the multiple injuries suffered. 3.3 On the basis of the oral report lodged by Tatu Panse, offence under section 302 of the IPC was registered against the accused vide Crime 107 of 2015 and investigation was entrusted to Police Sub Inspector (PSI) Rajesh Khandare, who recorded the statements of witnesses. While in police custody, the accused gave confessional statement pursuant to which the stick which was the weapon of offence was recovered and seized from the toilet of the house of the accused. Further investigation was conducted by PSI Mangesh Dange who recorded the statements of panch witnesses and sought opinion from the medical officer on the possibility of the injuries noticed on the body of the deceased being caused by the stick seized. Upon completion of the investigation, charge sheet was submitted in the Court of Judicial Magistrate First Class - 1, Achalpur who committed the proceedings to the Sessions Court. 3.4 The trial Court framed charge under section 302 of the IPC. The accused abjured guilt and claimed to be tried in accordance with law. The defence of the accused is of total denial. 3.5 The prosecution examined nine witnesses. PW1 is Tatu Panse, the brother of the deceased and informant. PW 2 Shikari Dahikar, PW 3 Pannalal Jamunkar and PW 4 Hira Dahikar are examined as eye-witnesses. PW 5 Aniket Lahan is the panch witness. PW 6 Dr. Sarvat Verma is the medical officer who conducted the autopsy. PW 7 Mangesh Dange and PW 9 Rajesh Khandare are the Investigating Officers and PW 8 Gajanan Verma is the constable who conducted the enquiry under section 174 of the Code of Criminal Procedure. 3.6 The accused did not examine any defence witness. PW 6 Dr. Sarvat Verma is the medical officer who conducted the autopsy. PW 7 Mangesh Dange and PW 9 Rajesh Khandare are the Investigating Officers and PW 8 Gajanan Verma is the constable who conducted the enquiry under section 174 of the Code of Criminal Procedure. 3.6 The accused did not examine any defence witness. In the statement under section 313 of the Code of Criminal Procedure, the defence which emerges is of total denial and false implication. 3.7 On consideration of evidence on record, the trial Court relying on the evidence of PW 2 - Shikari Dahikar, PW 3 - Pannalal Jamunkar and PW 4 - Hira Dahikar who are eye-witnesses recorded a finding that the accused mercilessly assaulted Nirmala. The trial Court then found, on consideration of the medical evidence on record that the injuries suffered due to the assault caused the death. The trial Court concluded that the accused intended to cause death of Nirmala. It is observed by the trial Court that the fact that accused threatened the eye-witnesses who sought to intervene and dissuade the accused from assaulting Nirmala, is indicative of the intention to cause death. The findings of the trial Court that the offence under section 302 of the IPC is made out is influenced substantially if not entirely by the evidence that the accused continued to assault Nirmala and did not heed the advice of the residents of the village to refrain from assaulting Nirmala and indeed threatened the residents. 4. With the able assistance of Shri Rishabh Khemuka, the learned counsel for accused and Shri C.A. Lokhande, the learned Additional Public Prosecutor, we have scrutinized the material on record and the reasons recorded by the trial Court. We are satisfied, on consideration of the evidence and in particular the natural, truthful and credible evidence of PW 2 - Shrikari Dahikar, PW 3 Pannalal Jamunkar and PW 4 Hira Dahikar that on the Nagnchami day, the accused severely assaulted his wife Nirmala. 5. The eye-witnesses PW 2 Shikari Dahikar and PW 4 Heera Dahikar are independent witnesses who are neighbours of the accused. The evidence of the eye-witnesses is broadly consistent. The version of the eye-witnesses is that at 8.00 a.m. or thereabout on the Nag-panchami day, a quarrel was going on between accused and the deceased. The deceased was imploring the accused not to assault her. The evidence of the eye-witnesses is broadly consistent. The version of the eye-witnesses is that at 8.00 a.m. or thereabout on the Nag-panchami day, a quarrel was going on between accused and the deceased. The deceased was imploring the accused not to assault her. PW 2 Shikari Dahikar states that he went to the house of the accused, caught hold of the accused and requested him not to assault his wife and the accused responded by threatening to physically harm PW 2 Shikari Dahikar. The witness has deposed that the accused was assaulting the deceased by stick on back, waist and leg. PW 4 Hira Dahikar who is the wife of PW 2 Shikari Dahikar has deposed on same lines. PW 3 Pannalal Jamunkar has deposed that he had visited the house of PW 2 Shikari Dahikar to collect labour charges between 7.00 to 8.00 a.m. on the Nagpanchami day and witnessed the quarrel between accused and the deceased. PW 3 Pannalal Jamunkar states that he did attempt to intervene and help deceased who was being assaulted by the accused. However, he was asked by the accused not to intervene. PW 3 Pannalal Jamunkar has deposed that the accused was assaulting the deceased by wooden stick and the witness was threatened by the accused with physical harm should he not go away from the spot. The evidence of PW 3 Pannalal Jamunkar does not suffer from any infirmity or embellishments as would dilute the credibility thereof. We have no hesitation in believing the account of the eye-witnesses to the incident and to hold that on the Nagpanchami day in 2015, the accused severely assaulted the deceased. 6. It is brought to our notice that in the year 2015 Nagpanchari was observed / celebrated on 19.8.2015. The consistent version of the eye-witnesses is that the assault took place on the Nagpanchami day. PW 2 Shikari Dahikar has also deposed that two days after witnessing the assault, he came to know that the wife of the accused had expired. Our attention is not invited to any other material which would fix the time and day of the assault. It is therefore, safe to assume that the assault took place on 19.8.2015 and Nirmala expired at the house of the accused on 21.8.2015. 7. The medical evidence may now be considered. PW 6 Dr. Sarvat Verma conducted the autopsy on 21.8.2015. Dr. It is therefore, safe to assume that the assault took place on 19.8.2015 and Nirmala expired at the house of the accused on 21.8.2015. 7. The medical evidence may now be considered. PW 6 Dr. Sarvat Verma conducted the autopsy on 21.8.2015. Dr. Verma noticed multiple injuries on the body, which are described thus: "1. Lacerated wound 2x1x1 over left thigh on anterial expect 2. Contusion 2x1x1 cm over left leg. 3. Contusion 2x11/2 cm over left leg below knee joint. 4. Contusion 2x1x1 cm over the left cheek near the left thigh. 5. Lacerated wound 2x1x1 cm over left elbow 6. Contusion over left forearm 4x2x2 inch 7. Contusion over left arm 4x2x2 cm 8. burn injury and bolster present over left elbow 2x2x1 cm" 7.1 Dr. Verma states that the injuries are sufficient to cause death in ordinary course of nature and are possible due to stick seized. PW 6 Dr.Verma states that the cause of death is chronic alcohol with alcoholic hepatitis with severe anemia with multiple injuries. In the cross-examination on behalf of the accused, PW 6 Dr. Verma states that the nature of the injuries suggests that all the injuries are grievous injuries. We note that the evidence of Dr. Verma has gone unchallenged on significant aspects. Illustratively, the assertion that the injuries are sufficient to cause death in the ordinary course of nature has gone unchallenged. It is indeed suggested to the doctor that the injuries are not grievous, which suggestion is denied. The evidence must be read as a whole. The doctor asserts that the cause of death is chronic alcohol with alcoholic hepatitis with severe anemia with multiple injuries. The evidence that the deceased was suffering from alcoholic hepatitis with severe anemia is not challenged. Presumably, the defence is that the cause of death is not the injuries suffered and therefore, the medical evidence that the deceased was suffering from alcoholic hepatitis with severe anemia is not challenged. We would advert to this aspect at a later stage in the judgment. 8. We have already observed that it is clinchingly established that the deceased was severely assaulted by the accused and she died two days after the assault in the house of the accused. The accused has not explained the circumstances of the death of the deceased at his house. 8. We have already observed that it is clinchingly established that the deceased was severely assaulted by the accused and she died two days after the assault in the house of the accused. The accused has not explained the circumstances of the death of the deceased at his house. The view of the trial Court that the accused made no attempt to provide medical treatment to the deceased is not erroneous much less unreasonable. It was for the accused to explain and clarify whether any medical treatment was provided to his injured wife and if provided, the nature thereof. On a holistic reading of the ocular evidence and the medical evidence, we concur with the finding recorded by the trial Court that the cause of death is the assault to which the deceased was subjected. 9. The other crucial question is which offence is committed by the accused. We are not persuaded to agree with the view of the trial Court that the accused intended to cause death. The nature of the weapon, the fact that the blows were not inflicted on vital organ would in our opinion exclude the intention to cause death. However, the accused must be attributed the knowledge that the assault could cause death particularly since the accused is presumed to know the physical and medical condition of his wife. The fact that the accused brutally assaulted his wife who was suffering from alcoholic hepatitis with anemia, is sufficient to attribute the requisite knowledge that the brutal assault may cause death. We are, therefore, inclined to hold that while the conviction of the accused under section 302 of the IPC is unsustainable, the accused is liable to be convicted for offence punishable under section 304, part II of IPC. We accordingly set aside the conviction of the accused under section 302 of the IPC and instead convict the accused under section 304 part II of the IPC and sentence him to suffer rigorous imprisonment for 5 years and maintain the sentence of fine imposed by the trial Court. 10. The appeal is partly allowed in the aforestated terms. 11. The fees of Shri Rishabh Khemuka the appointed counsel are quantified at Rs. 5,000/-.