JUDGMENT - SINHA D.D., J:---This appeal is directed against the judgment and order of conviction dated 22-5-1998 passed by the Additional Sessions Judge, Nagpur, in Sessions Trial No. 142 of 1989, whereby the appellant/accused is convicted for the offence punishable under section 302 of Indian Penal Code and is sentenced to suffer imprisonment for life and to pay a fine of Rs. 5,000/-, in default to suffer rigorous imprisonment for one month.

2. Mr. Daga, learned Counsel, for the appellant contended that in the instant case, the prosecution mainly relied on the evidence of alleged material witnesses, i.e. P.W. 1 Kalpana, P.W. 2 Kamlabai and P.W. 3 Pramod as well as on the evidence of P.W. 6 Dr. Jivtode apart from the other evidence adduced by the prosecution. Mr. Daga, learned Counsel, contended that in the instant case the prosecution utterly failed to prove the motive. It is submitted that the accused is the cousin brother of deceased Ishwar. The relationship between the accused and the deceased Ishwar was cordial and there was no occasion for the accused to commit the murder of his cousin brother Ishwargiri. It has come in the evidence that at the relevant time the deceased Ishwar was taking his meals at his own residence and the accused entered into the house saying, "Doctor saheb mujhe bachao (Doctor save me)". It is contended that the deceased Iswar was known as Doctor in the village since he was treating the villagers and was also giving Ayurvedic medicines in case of fever etc. Mr. Daga, learned Counsel, further submitted that it is possible in the given set of circumstances to even imagine that the accused who was seeking help from his elder brother would launch a murderous assault on him and commit his murder.

3. Mr. Daga, learned Counsel, further submitted that all the material witnesses are blood relatives of deceased Ishwarigir. It is submitted that P.W. 1 Kalpana is the daughter, P.W. 2 Kamlabai is the widow and P.W. 3 Pramod is the son of the deceased. It is contended that all these witnesses are interested witnesses and, therefore, their testimony ought not to have been accepted by the trial Court in absence of any independent corroboration coming forward from the independent witnesses. However, this aspect has not been properly appreciated by the trial Court and, therefore, the conviction based on the testimony of interested witnesses who had a positive interest in the prosecution ought not to have been accepted by the trial Court.

4. Mr. Daga, learned Counsel, alternatively contended that even if it is presumed that the incident, as alleged by the prosecution, had taken place even then it is not possible to hold that the prosecution has succeeded in proving the guilt of the accused for the offence charged. It is submitted that if the accused really would have intended to commit a murder of deceased Ishwar then in that event the accused would have given successive blow on the person of the deceased. However, in the instant case, there is a solitary blow given by the accused and, therefore, the prosecution did not succeed in proving the case for the offence punishable under section 302 of Indian Penal Code and the punishment ought to have been awarded for a lesser offence, in any case not under section 302 of Indian Penal Code. The learned Counsel, therefore, contended that the judgment and the order of conviction passed by the trial Court is not sustainable in law.

5. The learned Additional Public Prosecutor, Mrs. Jog, on the other hand, supported the judgment and finding of conviction of the trial Court and contended that there are three eye-witnesses to the incident in question namely P.W. 1 Kalpana, P.W. 2 Kamla and P.W. 3 Pramod. It is submitted that the testimony of all these witnesses is totally consistent and corroborates all the material particulars of the prosecution case. it is contended that the testimony of these witnesses is corroborated by medical evidence and, therefore, the prosecution has succeede

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