JUDGMENT (ORAL) G.D. Kamat, J. - The appellant through jail challenges his conviction under section 302 of Indian Penal Code and for which he is sentenced to life imprisonment in Sessions Case No. 21/91. The prosecution case against the appellant/accused was that on the night of 1st and 2nd July, 1991 in the early hours at about 2.00 a.m. at the control room of electric sub-station at Majorbander Harbour, appellant assaulted K. Puttagauda a co-worker at the said sub-station repeatedly with a koita causing his instantaneous death. 2. In support of the prosecution case in all 12 prosecution witnesses were examined. Having regard to the controversy arising in this appeal it is not necessary to refer to all prosecution witnesses and suffice to read evidence of P.W. 4 Mahadevappa Basappa who is the direct eye witness to the assault, P.W. 6 Radhabai Krishna Kamble who is the wife of the appellant and the medical evidence rendered by P.W. 5 Dr. Silvano Dias Sapeco. 3. From the prosecution evidence it transpires that the Electricity Department, Goa Government has a sub-station at Harbour which is called Majorbandar. The sub-station consists of a control room and a little away from this control room there is a room which is known as a store-room. The appellant was working for a number of years as linesman/wireman at the sub-station. Deceased Puttigauda was Assistant linesman and was also called as cable joinder. On Ist July, 1991 the appellant was slated for duty as linesman between 14.30 to 20.30 hours which is otherwise called the second shift Deceased Puttigauda was slated for duty on that day commencing from 20.30 hours until early morning of the following day. It appears that despite the duty of the appellant was over at 8.30 p.m. on that day, he chose not to go home under the pretext that he was suffering from colic and that he preferred to sleep for the night at the very sub-station. At about 2.00 a.m. the appellant assaulted deceased Puttigauda with a koita causing him large number of injuries, as a result of which' he succumbed to his death. The assault was witnessed by P.W. 4 Mahadevappa Basappa to whose evidence we make immediate reference. 4. Mahadevappa (P. W.4) deposed that he was working at the sub-station on 1st July, 1991 as Station Operator. He claims to know both the appellant as well as the deceased. The assault was witnessed by P.W. 4 Mahadevappa Basappa to whose evidence we make immediate reference. 4. Mahadevappa (P. W.4) deposed that he was working at the sub-station on 1st July, 1991 as Station Operator. He claims to know both the appellant as well as the deceased. According to him at that time Ramesh Keny (P.W. 2) was the Assistant Engineer in charge of the sub-station. He says that at about 8.30 p.m. when he had entered for duty at the sub-station he took charge from the operator by name Manuel. According to him soon after he entered the sub-station Puttigauda entered the same. He then refers to Kamble and says that his duty was over at about 8.30 p.m. but the appellant told him that he would like to lie down near the store-room as he is suffering from colics. This request came according to the witness when he was in the control room and the storeroom is away at a distance of 10 to 15 metres from the same. He saw the accused moving towards the store-room. The witness and deceased Puttigauda continued in the control room until at about 9.30 p.m. the witness went to the place where the appellant/accused was lying to see what the condition of the latter was. The witness inquired from him as to how the appellant was feeling. The witness suggested to him that he is prepared to go to a pharmacy before they close for the day and get some tablets for him and demanded of the accused to give him' the key of his bicycle. The witness suggested that in the event the colics aggravated during the night time there is no possibility of getting any medicine for the appellant at late hours of the night. The witness thereafter says that he came back to the control room and with the key tried to open the lock of the cycle, but as he did not succeed in opening the lock of the cycle he came back to the appellant and called upon him to unlock the cycle. The witness states that at this time the appellant told him that he does not need any tablet and there is no question of going on the bicycle. The witness then says that around 10.00 p.m. he and the deceased Puttigauda opened their tiffins and had their-dinner. The witness states that at this time the appellant told him that he does not need any tablet and there is no question of going on the bicycle. The witness then says that around 10.00 p.m. he and the deceased Puttigauda opened their tiffins and had their-dinner. The appellant was called to share the dinner with them but the appellant was not willing to eat on that night. At midnight according to the witness deceased Puttigauda told him that he would lie down on a bench existing in the control room to rest for a while and he found Puttigauda lying down on the bench. At about 1.00 a.m. the witness says that he took the reading which is usual and when it was about 5 minutes to 2.00 he left the control room and came to the yard to have a look at the transformer. The transformer is situated at a distance of 10 to 12 metres from the control room. The witness says that while he was at the yard he heard a sound from the control room which at the first shot was like a sound of dripping of the feeder. As the sound continued according to the witness he came running to the control room and saw the appellant hitting with koita blows after blows on deceased Puttigauda. The witness says that he saw Puttigauda lying on the ground and appellant still hitting him. According to the witness when he had left the control room and gone to the yard deceased Puttigauda was sleeping on the bench. The witness asserts that the blows of koita were all on the upper portion of the body of the deceased and deceased was profusely bleeding. The blows were given with the sharp edge of the koita. According to the witness he shouted at the appellant to stop hitting and at the same time asked him as to why he was hitting the deceased to which according to the witness the appellant started muttering words referring to his wife. According to the witness as the appellant continued hitting deceased he shouted for help in a very loud voice and at which time the appellant stopped hitting the deceased and went towards the side of the store-room. The witness saw the appellant keeping the koita on the ground and leaving the substation througl1 the rear door which leads to the yard. The witness saw the appellant keeping the koita on the ground and leaving the substation througl1 the rear door which leads to the yard. The witness then refers to the use of wireless set linked to the complaint office at Vasco town. Twenty five minutes later according to the witness a driver by name Silva with Assistant lineman Wellswamy along with one helper Rajan all employees of the Department carne to the spot in a pickup. All of them on seeing the deceased bleeding profusely immediately left the sub-station saying that they are going to call the police. The witness says that at about 3.15 a.m. Asst. Engineer Keny (P.W. 2), the Executive Engineer Hassan Kumar and another Asst. Engineer by name Nadikar carne to the station. At the same time according to the witness another vehicle landed near the sub-station with police party. In the meantime staff of the Mormugao Port Trust had gathered at the spot. When he was questioned he narrated the incident to the Police. He affirmed that the control room is very well lighted and the deceased was wearing uniform when he had come for work for the shift on 1st July, 1991 but he had removed the uniform sometime before the incident and was wearing only an underwear. 5. On behalf of the appellant/accused this witness was cross-examined. "There was no contradiction at all in the cross-examination. There is no challenge whatsoever to the deposition rendered by the witness and the only suggestion in cross-examination that may be mentioned is that there was some exchange between the appellant and the deceased that in the course of discussion deceased has uttered insults which were offensive to the honour of the person of the wife of the appellant. The witness has answered that the question put to him is false, thereby indicating that nothing of the kind had happened. 17th March, 1994. 6. The witness has answered that the question put to him is false, thereby indicating that nothing of the kind had happened. 17th March, 1994. 6. From the aforesaid it is clear that the above witness (P.W. 4), an operator was slated for the third shift starting from 8.30 p.m. onwards on 1st July, 1991 and the deceased was working under him and the appellant remained at the sub-station despite his second shift was over at 8.30 p.m. The witness saw the assault made by the appellant on deceased Puttigauda that too with a koita on the upper portion of the body as a result of which Puttigauda was bleeding profusely. The witness even shouted at the appellant. 7. Dr. Silvano Dias Sapeco is P.W. 5 who was at the relevant time attached at Hospicio Hospital, Margao as a Medico Legal Officer. He says that on 2nd July, 1991 he performed autopsy examination on the dead body of Puttigauda who was about 45 years of age. The body was brought by the Police attached to Harbour Police Station and the body was identified by the son of the deceased. On examination the Doctor found the following external wounds which were ante mortem in nature: (1) chop injury 8 x ¼ x 3 cm. was seen from left upper eyelid to inner aspect of eye and upper third of nose thereby cutting the underlying conjunctive, sclera, cornea and lense of left eye, nasal aspect of orbit and nasal bones. It has been directed from left to right and inwards into base of skull region; (2) chop injury 12 x 12 x 4 cms. was seen from left side of forehead to right outer of eyebrow thereby cutting the underlying skin and skull bone's valuton right side of frontal bone region and into membrane and right cerebral inwards and upwards; (3) chop injury No. 2's distal aspect and thereby cut the underlying skin and skull bone's valut on right side of frontal bone to the right temporal bone. The inner end is 2½ cms. above inner end of injury No. 2. Thus there is overlapping of distal third of injuries No. 2 and 3 in an X shaped manner. It is directed from below upwards and inwards into the occipital aspect of scalp thereby cutting the underlying bones with beveling tangentially upwards; (4) shaped chop defence injury, 4 cms. above inner end of injury No. 2. Thus there is overlapping of distal third of injuries No. 2 and 3 in an X shaped manner. It is directed from below upwards and inwards into the occipital aspect of scalp thereby cutting the underlying bones with beveling tangentially upwards; (4) shaped chop defence injury, 4 cms. long on dorsal aspect and 4½ cms. long on palmar aspect, was seen on web space of index and middle right fingers thereby cutting the underlying blood vessels, nerves, tendons and muscles for 4 cms. (5) press sure abrasion 2 x ½ cm. on left side of chest 8 cms. above areola; (6) incised abrasion, directed from left to right, 18 cms. x linear was seen from mid sternum to under aspect of right areola and axillary region; (7) incised abrasion, directed from left to right, 16 cms. x linear was seen from left inner and upper abdomen to below aspect of rib case prominence; (8) pressure abrasion 2 x ½ cms. on left side of neck, 3 cms. below ear lobure; (9) pressure abrasion 6 x ½ cm. on left side of neck, 1½ cm. below and parallel to wound No. 6; (10) chop injury 9 x ½ x 1½ cms. bone cut was seen on left side of scalp at parietal region with beveling inwards and front wards towards face and having cut to the outer table of skull vault's occipital bone; (11) chop injury 12 x ¼ x 3½ cms. x bone cut was seen on the right side of scalp at parietal region with beveling from above downwards and inwards towards right mastoid region and cutting both tables of skull's parietal bone and underlying membranes and brain at posterior region of right cerebrum; (12) chop injury 15 cms. perimeter x 4½ cms. x muscles x blood vessels cut was seen from right mastoid region to left nape aspect of neck. (13) chop injury 12 cms. perimeter x 3 x 5½ cms. x muscles x blood vessels cut was seen on right nape of neck region; (14) chop injury 16 cms. perimeter x 3 x 9 cms. x muscles x blood vessels cut upto the body of cervical spinal cord. It is 1 cm. below and pallelto injury No. 12 arid cuts on injury No. 13 at outer one fourth aspect; (15) chop injury 15 cms. Perimeter x 3 x 6 cms. perimeter x 3 x 9 cms. x muscles x blood vessels cut upto the body of cervical spinal cord. It is 1 cm. below and pallelto injury No. 12 arid cuts on injury No. 13 at outer one fourth aspect; (15) chop injury 15 cms. Perimeter x 3 x 6 cms. x muscles x blood vessels cut was seen on right back of neck. It starts 2 cms. below distal third of injury No. 14; (16) chop injury 14 cms. perimeter x 3 x 6 cms. x muscles x blood vessels cut was seen at posterior back of neck; (17) chop injury 9 x 1-3/4 x 2 cms. x fat muscles cut on the right posterior back of neck. It is 1½ cm. below injury No. 16; (18) chop injury 9 x 2 x 3 cms. x fat x muscles cut on the right back of shoulder aspect; (19) chop injury 13 x 3 x 5 cms. x fat x muscle cut from above down-wards into the top of right shoulder and it cuts at posterior third of injury No. 18; (20) chop injury 16 x 3 x 3 cms. x muscle cut at upper 2/ 3rds with tailing for 6 cms. at lower aspect and directed into the shoulder blade's muscles; (21) chop injury 14 x 4 x 3 cms. x muscle cut and 5 cms. of tailing at axillary aspect was seen at back of right shoulder blade bone region; (22) abrasion 2 x 1 cm. at outer malleolar prominence of left ankle. The witness says that wounds Nos. 1 to 4 and 10 to 21 have been caused by a heavy cutting weapon. Wounds Nos. 5, 8, 9 and 22 have been caused by blunt object or force or surface impact Wounds Nos. 6 and 7 have been caused by sharp edge of the weapon. Upon internal examination of the skull the witness found that there was pooling of blood effect seen under injuries Nos. 2, 3, 10 and 11. There were fracture cuts corresponding to external injuries Nos. 2 and 3 whose upper ends radiated into linear fractures up to coronal suture. There were also cuts to right and left parietal bones corresponding to injuries Nos. 20 and 11. There was bilateral diffused subdural and subarachnoid haemorrhage. 2, 3, 10 and 11. There were fracture cuts corresponding to external injuries Nos. 2 and 3 whose upper ends radiated into linear fractures up to coronal suture. There were also cuts to right and left parietal bones corresponding to injuries Nos. 20 and 11. There was bilateral diffused subdural and subarachnoid haemorrhage. There was cut to body of second cervical vertebra and its odontoid process corresponding to external injury No. 14 with associated cut to the cervical spinal cord. Upon dissection of the neck, there was pooling of blood effect underlying neck tissues and corresponding to external injuries No. 12 to 18. In the opinion of the Doctor the approximate time of death was about 2.00 a.m. which was consistent with the record produced by the police. Insofar as cause of death is concerned according to the witness it was due to haemmorhage and shock and cuts to vital organs consequent to cum mulative effect of chop injuries No. 1 to 4 and 10 to 21 which were fatal in the ordinary course of nature and fresh at the time of death. When shown koita (M.O. 5) the witness asserted that the injuries found on the body of the deceased could be caused by such a weapon. The Doctor determined the blood group of the deceased to be Rh. positive. The Doctor was also called upon to examine the appellant/accused at the request of the Police and no recent injury was found on his person. Upon examination of the blood of the appellant the Doctor opined that it was 'B' positive. 8. Smt. Radhabai Krishan Kamble (P.W. 6) is the wife of the appellant. She was examined by the prosecution to prove that the appellant had taken thekoita (M.O. 5) along with him when he had left for work in the morning. Radhabai says that she was in occupation of a flat in quarters belonging to the Electricity Department of the State Government. She along with her three children and husband were occupying the flat on the first floor. The deceased was occupying a flat below them on the ground floor in the same building and one Sidaya was staying on the second floor of the same building. She affirmed that she knew deceased Puttigauda and the relations between her family and that of the deceased were not good for the last two years before the present incident. The deceased was occupying a flat below them on the ground floor in the same building and one Sidaya was staying on the second floor of the same building. She affirmed that she knew deceased Puttigauda and the relations between her family and that of the deceased were not good for the last two years before the present incident. According to her deceased and his family members used to raise quarrels on flimsy grounds. Some two years earlier according to her on account of a very minor incident of young children of the deceased quarreled with her minor children, deceased Puttigauda had assaulted her with a danda blow when she intervened in the quarrel. This blow caused injuries to her hands and as a result thereof the two families were not on speaking terms. Insofar as the incident of 1st July, 1991 is concerned she says that her husband left for work in the morning and he had taken a koita from the kitchen while leaving the house. She says, she asked her husband as to why he is taking the koita and his reply was that he needed it to cut some trees. According to her the accused never came for the mid-day meal on that day although usually he used to come at 2.00 p.m. She also deposed that her husband did not come at night time also on that evening. She says that early morning of the following day atabout4.00 a.m. police party came to her house and asked her about her husband to whom she reported that her husband has not returned back once he had left for work on the earlier day. On coming to know that her husband was involved in the incident according to her she was scared and left for Kolhapur which is her native place along with her children by taking assistance of her brother-in-law who was residing at that time in Vasco. She says that on or about 11th July, 1991 she was called to the Police Station from her native place and her statement was recorded. She says that she identified the koita, a plastic raincoat and a pair of plastic sandals as the items belonging to her husband. She says that on or about 11th July, 1991 she was called to the Police Station from her native place and her statement was recorded. She says that she identified the koita, a plastic raincoat and a pair of plastic sandals as the items belonging to her husband. She identified M.O.S when shown to her as the one belonging to her kitchen and the one taken by her husband on the day of the incident when he had left for work. In cross-examination however a question was put to her whether or not her husband used to take the koita with him whenever he used to go for his work. The witness replied that the same is true. 9. In the evidence of P.W.4 Mahadevappa reference as made that after the assault the appellant had kept the koita at the sub-station at the same time leaving his raincoat and chappals. panch witnesses have been examined to whom no special reference is required about the panchanama of the scene of offence as also recovery of the koita, raincoat and the chappals belonging to the deceased. The same items have been also identified by the wife of the appellant Smt. Radhabai (P.W. 6). 10. The blood stained clothes of the appellant were sent for chemical analysis to the Chemical Analyser. The report of the Chemical Analyser has been produced by Nilu Raut Dessai (P.W. 12) who is the Investigating officer. The blood stains found on the shirt (Exh. 10) of the appellant/ accused was of the group 'O': We have already found in the evidence of Dr. Silvano Dias Sapeco (P.W. 5) that the blood group of the deceased was 'O' whereas that of the appellant/accused was 'B'. From the evidence of Mahadevappa (P.W. 4) the assault by the appellant on deceased Puttigauda by a koita is clearly established. The assault stands duly corroborated by Dr. Silvano Dias Sapeco (P.W. 5) further corroboration to the used weapon used in the crime has come directly from Smt. Radhabai, the wife of the appellant There is no infirmity whatsoever in the evidence of P.W. 4 Mahadevappa and having regard to the nature of duties for which he was detailed in the sub-station on that night the version given by him is so natural that there is no iota of suspicion. There is not even a suggestion that that P.W. 4 Mahadevappa was having any animus against the appellant accused. Having regard to the nature of injuries found on the person of the deceased this is a clear case of brutal murder and assault by weapon which is heavy, generally used for breaking coconuts. It is also a case of continuous blows with that weapon and which appears to be unprovoked assault insofar as deceased Puttigauda is concerned. A few minutes before the incident deceased Puttigauda was sleeping on a bench in the control room which P.W. 4 Mahadevappa had left to have a look at the transformer outside and when he returned back he saw deceased on the ground with face downwards and appellant assaulting him with koita. 11. Shri V.P. Thali, learned counsel for the appellant says that the prosecution has not been able to prove the genesis of the assault. He says even when the version of P.W.4 Mahadevappa (P.W. 4) is accepted yet it is possible that a quarrel might have ensued between the appellant and the deceased. It is possible he says that the quarrel might have been started by the deceased Puttigauda and in any case in the absence of how the quarrel started is not forthcoming from the prosecution it is unsafe to convict the appellant under section 302 and it is safer to convict the appellant under section 304 Part II of I.P.C. 12. In support of his theory that it is safer to convict the appellant under section 304 Part II Shri Thali relies upon an unreported decision of Robert Pedro Kalpon v. The State1. Kalpon in the case had been convicted under section 302 and this Court to which one of us (Kamat, J.) was a party held that conviction under section 302 is not sustainable and instead Kalpon was convicted under section 304 Part II. We have gone through this judgment and it transpires that Kalpon entered a residential flat occupied by one Iyer. When Iyer asked as to what Kalpon wanted, Kalpon seem to have been lost. He entered the bathroom and then he entered the balcony. Out of fright Iyer started praying. Thereafter he heard some assault going on in the neighbouring flat occupied by one Keni. When Iyer asked as to what Kalpon wanted, Kalpon seem to have been lost. He entered the bathroom and then he entered the balcony. Out of fright Iyer started praying. Thereafter he heard some assault going on in the neighbouring flat occupied by one Keni. Iyer did not succeed in getting Keni to open the door of the flat and Iyer therefore went downstairs to alert some other. neighbour. When he came out he had found Keni lying outside his flat and bleeding from injuries. Kalpon was found hiding in the same flat occupied by deceased Anant Keni. It transpired from the prosecution evidence in that case that Railway Police were after Kalpon; that Kalpon had been in fact apprehended by them and Kalpon had ran away from the Railway police. Though Kalpon entered the flat of Iyer he did not commit any theft nor assaulted Iyer. Though it was found that Kalpon had entered the flat occupied by Keni, Keni was assaulted, as a result of which he died, yet nothing was pilfered from the house of Keni. Having regard to the facts and circumstances of that case the Division Bench thought that in the absence of genesis of assault being not known it was not possible to accept the view that Kalpon intended to cause death of Keni. It is in this view of the maner that the Division Bench converted the conviction from section 302 to section 304 Part II of I.P.C. 13. Mr. Thali now relies upon the decision of Baburao Nathya Waghe v. State of Maharashtra2, a Division Bench of this Court held that the offence committed attracted section 304 II and not section 302. This was a case of a death of a wife as a result of assault at the hands of her husband. The wife was assaulted by a thin iron rod and that too on non'" vital parts of the body. The Court held that though there were several injuries no intention 10 commit murder could be inferred because the assault was on non-vital parts of me body. He next referred to the decision of Vincent v. State of Kerala3. The wife was assaulted by a thin iron rod and that too on non'" vital parts of the body. The Court held that though there were several injuries no intention 10 commit murder could be inferred because the assault was on non-vital parts of me body. He next referred to the decision of Vincent v. State of Kerala3. In this case the Kerala High Court set aside the conviction under section 302 and instead awarded conviction under section 304 Part II because the Court found that there was no evidence as to how the incident had commenced although there were large number of abasions and burises found on the dead body. There was no evidence that the appellants were the aggressors in the encounter and the several injuries were found to be consistent with the theory that some scuffle had preceded the stage which had not been witnessed by prosecution witnesses. Another authority was also relied upon by Shri Thali in the decision of State of Karnataka v. Siddappa Basanagouda Patil and another4, where the Supreme Court set aside the conviction under section 302 and instead held the appellant guilty under section 304 Part II. Upon evidence it was found that there was oral altercation between the deceased and the accused 2 or 3 days before the incident. The deceased, a wrestler entered the house of the accused and upon committing trespass picked up a quarrel with the father and son. There was no clear evidence as to how the occurrence originated. Except one injury none other injuries found on the deceased were of serious nature. All this made the Supreme Court take the view that conviction under section 304 Part II was the proper conviction. The next authority relied upon is the decision of Sujan Singh and others v. State of Haryana5. Here again the sentence of the accused appellants under section 304 Part II from 7 years was reduced to 5 years. The facts were that the deceased was a lame person and obviously having strained relation with the appellants. He was attacked with 'jailies', 'lathies' and 'pharsa' by the appellants but the blows were not found on the vital parts of the body though they were found to be sufficient to cause death in the ordinary course of nature. 14. The facts were that the deceased was a lame person and obviously having strained relation with the appellants. He was attacked with 'jailies', 'lathies' and 'pharsa' by the appellants but the blows were not found on the vital parts of the body though they were found to be sufficient to cause death in the ordinary course of nature. 14. From the aforesaid authorities it is clear that the intention to commit murder depends upon the nature of the assault and the vital organs attacked with the concerned weapon. Mere ensuing of death necessarily does not lead into a conviction under section 302 and there are cases when it can be under section 304 Part II. Applying the test in the present case we are satisfied that there was continuous rendering of blows with a koita on all the vital parts of the deceased Puttigauda. The manner in which the vital parts were attacked with a weapon like Koita (M.O.5) there can be no escape other than a clear cut intention on the part of the appellant/accused to cause death of the deceased Puttigauda. From the nature of the evidence already seen it is not possible to accept Shri Thali's contention that merely because it is not known as to how the assault started the conviction has to be converted from section 302 to section 304 Part II. On the contrary it is our considered view from the evidence of Mahadevappa (P.W. 4) that appellant attacked the deceased when he was sleeping on a bench in the control room. No case is therefore made out for taking any other view with the result the conviction and sentence is to be affirmed. 15. Before we part with this judgment we put on record the services rendered by Shri V.P. Thali who was appointed under Legal Aid Scheme and the pains he took in the preparation of this appeal. 16. The appeal fails and is dismissed. Appeal dismissed. 1. Crl. Appeal No. 30/88; Decided on 14.2.1989 (DB) (Unreponed). 2. 1993 (1) Mah. L.R. 164 3. 1993 (2) Crimes 91 4. 1990 Cri L.I. 1116 (S.C.). 5. 1993 (1) Mah. L.R. 566.