JUDGMENT :

V.M. Deshpande, J.

The appellant, who is convicted for the offence punishable under Section 304 Par tl of the Indian penal Code and sentenced to suffer rigorous imprisonment for Five years and to pay a fine of Rs. 1,000/by the learned Sessions Judge, Nagpur on 28.2.2005 in Sessions Trial No. 538/2001, is before this Court.

2. I have heard Mr. A.C. Jaltare, the learned counsel for the appellant and Mr. N.S. Rao, the learned Additional Public Prosecutor for the State. They took me in detail through the evidence of various prosecution witnesses and other relevant documents.

3. In Sessions Trial No. 538/2001, the learned Sessions Judge, Nagpur framed the Charge against the appellant that on 03.07.2001 at about 22.00 hours, at Navnirman Colony Chowk, Ring Road, Nagpur (in front of Pramod Pan thela) Pratap nagar, Nagpur he caused death of one Nishant Mangal Ghodeswar and thereby committed an offence punishable under Section 302 of the Indian Penal Code. The charge was denied by the appellant. During the course of the trial, the prosecution examined in all Ten witnesses and also relied on various documents. The learned Sessions Judge acquitted the appellant for the offence punishable under Section 302 of the Indian Penal Code, however, found him guilty for committing offence punishable under Section 304 Part I of the Indian Penal Code. Hence, this appeal.

4. The post mortem report is at Exh.26. It is admitted by the defence during the course of the trial. The post mortem report shows single injury, which was stiched wound with four stiches over left side of forehead, 3.5 cm left from lacerated end of left eyebrow, vertically placed. After opening the stitches, the autopsy surgeon found stab wound of length 2.5 cm x cavity deep, Margins clean cut, both the angles acute. In view of the post mortem report, there cannot be doubt in anyone's mind that death of Nishant was unnatural. According to the prosecution, the appellant is responsible for the injury resulting into his death. However, the defence, as it was disclosed during the course of the trial on the part of the appellant, is that PW4 Anant Wagde, PW5 Rakesh Banwari, PW6 Niraj Sahare and deceased Nishant started beating him due to which he suffered injuries on mouth. During the process of beating, Anant Wagde (PW4) took out Knife and hurled the same to injure him. In order to save himself, he sat down and at that time it was Nishant who was standing behind his back, got the said blow.

5. From the evidence of PW7 Himmatrao Mate, it appears that on 03.7.2001 at about 10.10 pm, he received a phone call from Dr. Padole informing him that one person in injured condition is brought to his hospital and that person is unconscious having injury by sharp weapon on his left temporal region. Dr. Padole requested Himmatrao Mate (PW7) to come to his hospital. Therefore, he and one Head Constable Dilip went to Padole Hospital. Dr. Padole showed him the patient. He was unconscious. Dr. Padole gave medical certificate (Exh.11). Thereafter, he returned to Police Station and registered offence under Section 307 of the Indian Penal Code. He also intimated about the same to P.I. Shirbhate of Pratap nagar Police Station. Also he intimated registration of crime to the Assistant Commissioner of Police and Deputy Commissioner of Police. His action was approved by his two superior officers.

6. PW7 Himmatrao Mate's evidence further shows that on 04.7.2001 at about 1.30 hours, he received a phone call from Dr. Padole intimating him that the patient has expired. Accordingly, he took the entry and added offence punishable under Section 302 of the Indian Penal Code. It was also intimated by him to his superiors. His evidence shows that thereafter on the same day two boys came to police station at about 1.45 am and those two boys informed him that at the pan thela of Swawlambi Nagar, their friend was assaulted by sharp weapon and their friend was admitted in Padole Hospital. They also informed that their fr