JUDGMENT (ORAL) G.D. Kamat, J. - Appellant challenges his conviction under section 304 part I of the I.P.C. recorded by the learned Sessions Judge. South Goa, Margao, in Sessions Case No. 12/91 and wherein he has been sentenced to six years of Rigorous Imprisonment and also directed to pay a fine of Rs. 1,000/- and in default to undergo six months of imprisonment. 2. The prosecution case against the appellant is that at about 22.30 hours, on 31st, 1991, at the construction site at Calconda of Navelim, Salcete Taluka, after exchange of hot words and some fight, the appellant rushed to his shed, came with a knife in his hand and stabbed one Parmeshwar (deceased) on the left side on the back with the result Parmeshwar collapsed on the ground and soon succumbed to his injuries after he was rushed to the Hospital. 3. In support of the prosecution case, as many as 11 witnesses were examined. Having regard to the prosecution case for the purpose of appreciation of this appeal, in our view, reference is required only to two material eye-witnesses and to some extent the medical evidence. 4. The scene of offence at a place called Calconda of Navelim, is a construction site. It appears that M/s. Abhay and Associates, which is owned by Mr. Hegde, were making a two-storied construction of a building. The appellant was employed as a labourer through the agency of a labour contractor Langly Thomas (P.W. 1). The deceased Parmeshwar was working of that very site in the unit of carpentry. As is usual, the appellant, the deceased and many other workers were occupying temporary sheds erected near the construction site. Two eye-witnesses whose evidence is required to be seen in the light of challenges involved in this appeal are one Sidaraj (P.W. 5), who was placed on duty as a watchman at that very site and P.W. 10 Kirshna Pradhan, who was employed as a Carpenter. 5. Before we look into the evidence of these two witnesses it may be mentioned that Mrs. 5. Before we look into the evidence of these two witnesses it may be mentioned that Mrs. Agni, learned counsel appearing for the appellant, has rested her challenge on two grounds, namely: (1) that from the prosecution evidence it cannot be established that the appellant was involved in the offence on the relevant date: and (2) even assuming that the prosecution story is proved, in Such case the appellant can only be punished under section 326 of I.P.C. 6. Coming to the evidence of Sidaraj, P.W. 5, he says that he is hailing from Nepal and had been at this site for a considerable time and his duties start from 18 hours going up to 6 a.m. on the following day. According to him he noticed a quarrel was going on between the appellant and the deceased Parmeshwar and at one point of time he saw them assaulting each other. He was per forced to separate them and what spryer, tried to pacify them calling upon them not to fight any more. Despite pacification, according to him, the -fight continued. For a long time insults and abuses were being heard, but there was no hand-to hand fight. He says that both were drunk and at one stage he saw the deceased Parmeshwar giving a slap on the appellant. He again interfered and made both of them sit on a cot. He then saw accused going to his shed nearly band come running with a knife in the hand and stabbing Parmeshwar on the back. According to him Parmeshwar moved for about 4 ft. and thereafter collapsed on the ground. He then says that Krishna who also works as a Carpenter at the same site reached-the spot. As blood was oozing out from the injury sustained by Parameshwar, Krishna brought a rickshaw and took Parameshwar to the hospital. He then corrects himself and says that Krishna went to the Police Station saying that he was going to lodge a complaint. After sometime two policemen came in a rickshaw and Parameshwar was taken to the hospital. According to the witness his relations with both the appellant and the victim were cordial. He was cross-examined and it must be noted that nothing adverse to the prosecution was elicited in the cross-examination. After sometime two policemen came in a rickshaw and Parameshwar was taken to the hospital. According to the witness his relations with both the appellant and the victim were cordial. He was cross-examined and it must be noted that nothing adverse to the prosecution was elicited in the cross-examination. He affirms in the cross-examination that the appellant and 'Parameshwar used to drink and on the relevant day both were smelling of alcohol. In his statement to the police, it appears that he had not made a statement that the appellant had gone to the shed, brought the knife and thereafter rushed and assaulted Parameshwar with it. 7. Insofar as the evidence of Krishana Pradhan (P.W. 10) is concerned, he says that he is hailing also from Orissa where from the deceased was also hailing. He says that he came as a Carpenter more than a year ago, working at different places and came to the site in question about a month before the incident. Speaking about the incident, he says that on 31st March, 1991, the building we being constructed by one Hedge and the contractor was by name Thomas, who was also in charge of the carpentry and iron works of the building. He says that in all five carpenters were working at that site out of whom deceased Parameshwar was one of them. On affirming that his relations with both the appellant and the deceased were good throughout, he says that at about 10 p.m. he saw the appellant coming from outside and he could notice that he was drunk. He also heard the appellant hurling insults at Parameshwar and saw appellant giving a slap on Parameshwar and says that one slap was given on the cheek of the deceased. He now says that once Parmeshwar was given a slap, Parameshwar told the witness: "I do not want to continue working here, I will clear my accounts with the contractor and go". On hearing this, according to him, appellant asked Parameshwar: "Are you going to complain against me to the contractor?" and saying this appellant went to his room and came back ,with his hand behind his back and suddenly stabbed Parameshwar on the back with a knife which he had been ,holding. He then affirms that appellant removed the knife from the back of Parameshwar after which blood started oozing out from the cut. He then affirms that appellant removed the knife from the back of Parameshwar after which blood started oozing out from the cut. Parameshwar staggered for a time and then collapsed. He says that the watchman of the building who is a Nepali and several other persons came running. He then says that he and the Gurka arranged for a rickshaw, put Parameshwar in it and sent him to the hospital. While however going to the hospital he went to the Police Station and gave the necessary information about the incident. Parameshwar was declared to be dead at about midnight. He again went to the Police Station at which time according to him his F.I.R. was taken down by the police. He identified his signature on the F.I.R. (Exhibit 35). It may be again said that nothing adverse was elicited in the cross-examination of this witness. 8. Mrs. Agni, learned counsel appearing for the appellant, indeed mentions that a minute analysis of the evidence of P.W. 5 Sidaraj and P.W. 10 Krishan would reveal that Sidaraj (P.W: 5) was not present at the scene of the offence, but came to the spot only after Parameshwar had. collapsed on the ground. She therefore says that the stabbing incident must not have been witnesses by P.W. 5 Sidaraj. According to her, a closer examination of the evidence of Sidaraj (P.W. 5). would suggest that Krishna (P.W. 10) had reached the scene of offence also after the - collapse of Parameshwar and therefore Krishna must not have seen the incident. 9. It is an admitted position that the victim Parmeshwar came to die in the casualty department of the hospital sometime after he was taken to the hospital at Margao. The post-mortem notes proved by witness Dr. Silvano Dies Sapeco (P.W. 8) at page 49 in clear terms establishes after the performance of the autopsy on the dead body by him, that there was an oblique stab penetrating wound, 4 cms. upper aspect with lower peculation of 43/4 cms. which seen on the left lower back of chest. The lower and was 15 cms. above iliac crest and the upper end was 7 cms. beside the vertebral column. On internal extermination, it was found that the wound was directed from above (up) downwards and inwards cutting the 12th rib at its middle, with the result the pleura was pierced. which seen on the left lower back of chest. The lower and was 15 cms. above iliac crest and the upper end was 7 cms. beside the vertebral column. On internal extermination, it was found that the wound was directed from above (up) downwards and inwards cutting the 12th rib at its middle, with the result the pleura was pierced. There was also piercing of diaphragm to the extent of 3 cms arid at the same time piercing of the posterior upper half of the left kidney to the extent of 3 cms. In his opinion Dr. Sapeco says that the cause of death was due to haemorrhage and shock as a result of thrusting impact by sharp and pointed weapon. In at least on two aspects of the matter; both from the point of view of prosecution as well as from the point of view of defence. The knife allegedly used in the commission of the offence according to the prosecution version was discovered by the appellant under section 27 of the Evidence Act. This blood stained knife was shown to the doctor and he was asked whether the injury sustained by the deceased could have been caused by that weapon. The doctor answered affirmatively to this question. The next aspect worth seeing is the doctor was asked whether the deceased could have survived despite the stab wound if urgent medical aid had been rendered to the deceased. The doctor clearly opined that if assistance was rendered within 15 minutes of stabbing there were chances of Parameshwar surviving. 10. The appellant faced the charge under section 302 of the I.P.C. The learned Sessions Judge recorded that regard being had to the fact that the appellant as well as the deceased were drunk and there was verbal, fight and also assault sometime before the stabbing incident took place, there was no intention on the part of the appellant to kill the deceased. He therefore clearly came to the conclusion that the appellant cannot be convicted under section 302 of the I.P.C. He however convicted the appellant under section 304 partly concluding, that the accused was aware that the blow that he gave on Parmeshwar was likely to cause his death. 11. We are unable to Agree with Mrs. He therefore clearly came to the conclusion that the appellant cannot be convicted under section 302 of the I.P.C. He however convicted the appellant under section 304 partly concluding, that the accused was aware that the blow that he gave on Parmeshwar was likely to cause his death. 11. We are unable to Agree with Mrs. Agni, that having regard to the discrepancies pointed out by her that evidence of P.W. 5 Sidaraj and Krishna P.W. 10 has to be disbelieved, We must point out that we arc unable to read any discrepancy in the version of these two material eyewitnesses. There are not even contradictions which can be termed as material contradictions for the purposes of casting any doubt. What is sooghuo be brought on record are some minor omissions which in any view of the matter are so trifling that in no manner can discredit the evidence of these two witnesses. We also find that P.W. 5 Sidaraj and P.W. 10 Krishna have narrated the whole incident so naturally and with Such a frankness that there can be no charge of even minor exaggeration insofar as their evidence is concerned. In other words, it must be said that this is a straight prosecution case where after some fight the appellant goes to his shed comes with a knife and stabs the deceased Parameshwar on his back after deceased slapped him. 12. Mrs. Agni is also not right when she says that if the prosecution story has to be accepted then the appellant has committed not more than the offence of section 326 of the I.P.C. We are equally unable to agree with her. We must make it clear, having regard-to the injuries to which we have abundantly made reference while referring to the evidence of Dr. Silvano Sapeco, P.W. 8, the appellant certainly knew that the blow that he gave on the deceased that too with a sharp cutting instrument, was with the, knowledge that it is likely to cause death or the appellant knew that it could cause Such bodily injury as is likely to cause death. In our view, no other view is possible to hold that the appellant can be convicted for an offence lesser than section 304 part II. Mrs. In our view, no other view is possible to hold that the appellant can be convicted for an offence lesser than section 304 part II. Mrs. Agni indeed contended that the recovery of the so called knife under section 27 of the Evidence Act is highly doubtful, in that she pointed out that though the prosecution version is that the knife with its blade as also the handle had blood stains, the garment (lungi) with which the appellant had wrapped did not have any stain of blood and that is clear from the report of the Chemical Analyser. We must point out that Mrs. Agni is right. upon perusal of the Chemical Analyser's Report (Exhibit 40), it is Clear that the lungi in which the knife in question was wrapped and which is alleged to have been discovered by the appellant, did not have any blood stain. We need not go into the question of illegality of the discovery of the knife, by the appellant inasmuch as eye version of P.W. 5 Sidaraj and P.W. 10 Krishna is Such that when the appellant stabbed the victim with a knife, it is irrelevant whether it was width M.O. for by some other knife. It is also possible that thee knife which is allegedly discovered by the appellant was used, and the only dispute can be what it was not discovered by the appellant as per the prosecution version. That however, does not dislodge the main story of the prosecution of the assault by the appellant on the deceased Parameshwar. 13. The learned Sessions Judge upon holding the appellant guilty under section 304 part I of the I.P.C. sentenced him to imprisonment for a period of six years and also imposed a fine of 1,000/- and in default, to undergo further six months. In view of the change in the conviction that we now make in this appeal, the sentence is accordingly liable to be convicted for an offence under section 304 part II of the I.P.C. and accordingly he is sentenced to Rigorous Imprisonment for four years. 14. Appeal accordingly partly succeeds and the same is partly allowed. The impugned Order of conviction dated 5th May, 1992 and sentence dated 8th May, 1992 recorded in Sessions Case No. 12/91 modified and the appellant is convicted under section 304 part II of the I.P.C. and sentences to Rigorous Imprisonment for four years. 14. Appeal accordingly partly succeeds and the same is partly allowed. The impugned Order of conviction dated 5th May, 1992 and sentence dated 8th May, 1992 recorded in Sessions Case No. 12/91 modified and the appellant is convicted under section 304 part II of the I.P.C. and sentences to Rigorous Imprisonment for four years. Appellant is entitled to the benefit of section 428 of the Criminal Procedure Code. Appeal allowed partly.