D. S. ZOTING, J. :- This is an appeal preferred by the State of Maharashtra against the judgment and order dated 12-7-1990 passed by the Sessions Judge, Chandrapur in Sessions Case No.18 of 1990. By the said judgment and order, the accused has been acquitted of the offence charged under Section 302 of the Indian Penal Code. He has been convicted for an offence punishable under Section 304, Part-II of the Indian Penal Code and sentenced to suffer rigorous imprisonment for four years. He has been further convicted for offence punishable under Section 324 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for four years. He has been further convicted for offence punishable under Section 324 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for one year. Both the sentences were directed to run concurrently. Thus, the appeal is filed under Section 378 Cr.P.C. against the order of acquittal of the accused for an offence charged under Section 302 of the Indian Penal Code.

2. The murdered man was one Gangadhar Tanba Choukhe, aged about 32years. He was resident of village Adegaon. He was residing with his wife Tulja (PW 2) and mother Baljabai. The incident occurred at the / square. There was a lamp-post near the square. The house of the deceased is situated at a distance of about 100 feet from the said square.

Villagers used to come to the square after taking their meals for chit-chatting. There is a pan shop at the square. The house of accused is also situated near the square. These are the facts which are not in dispute.

3. The prosecution case, in brief, is that on the fateful day i.e. On 24-9-1989, deceased Gangadhar took meals and he went to the square. There was altercation between the deceased and Mahadeo the father of accused over the road passing through the boundaries of their field. Gangadhar was saying that there was no road existing through the boundary whereas Mahadeo was insisting upon such road. The accused arrived there and asked them to keep quiet. On hearing the commotion, the wife and mother of deceased came to the spot and they requested Gangadhar to go to the house, but Gangadhar did not pay any heed to their request. The accused went back to his house and again arrived on spot. He gave a blow of dagger on the left side of the chest of deceased Gangadhar as a result of which the deceased sustained bleeding injury. He fell down and died on the spot instantaneously. P.W.1 Daulat and PW 2 Tulja tried to obstruct the accused and in that event they received the injuries. Daulat (PW 4) is Police Patil. On hearing commotion from his house, he started proceeding towards the square. Gangadhar's wife and mother met him on the way and they were crying and they told him that the accused murdered Gangadhar. He proceeded to the spot and he saw Gangadhar lying dead in a pool of blood. He went to the house of accused and asked him to produce the dagger (Barchi). The accused produced the dagger which was found stained with blood. It was attached by the Police Patil in presence of panchas and he prepared occurrence report (exhibit 11) and sent the same through Arun Chaudhari to the Police Station. On the basis of the said report, offence came to be registered against the accused under Section 302 of the Indian Penal Code. PSI Sharma (PW 12) registered the said offence vide crime no.87/89 under section 302 of the Indian Penal Code. He visited the spot and drew panchanama of scene of offence in presence of panchas. The panchanama is at exhibit 13. He held inquest on the dead body of deceased Gangadhar and drew panchanama (exhibit 14). He sent the dead body of Gangadhar for post-mortem examination and attached the dagger produced by Police Patil and it was seized under seizure panchanama (exhibit 12). He seized the clothes of the accused under seizure panchanama (exhibit 18). His Baniyan was found stained with blood. As PW 1 Daulat and PW 2 Tulja had bleeding injuries, he sent them for medical exa

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