JUDGMENT T.K. Chandrashekhara Das, J. – The appellant is the accused in Sessions Case No. 9/1993 on the file of the District and Session Judge, South Goa, Margao. He was charged under Section 302 I.P.C. alleging that on 5.12.1992 at 20.45 hours at Pontemol, he has committed murder by intentionally causing death of his father Ramrai Sawant, aged about 70 years, by assaulting him with fist blows and thereafter sitting on him and due to which his vital organs were damaged, causing instant death. 2. The learned Sessions Judge found him guilty under Part II of Section 304 I.P.C. and sentenced him to undergo rigorous imprisonment for 5 years which commenced from 5.12.1992. 3. According to the prosecution as disclosed in the F.I.R., the accused came home drunk at about 8.45 p.m. on 5.12.1992 and kicked the deceased. Therefore, the accused came to the kitchen and called his mother using funny language and then she ran away her daughter's house at Kakoda. She returned back with her daughter and sister-in-law and found the deceased lying. Ramrai died at about 10.30 p.m. and F.I.R. was lodged by his wife Sitabai. 4. The prosecution examined altogether 11 witnesses out of which, P.W. 5, the mother of the accused, P.W. 6, the sister of the accused, P.W. 8, the sister of the deceased, who spoke about the incident and however turned hostile. P.W. 1, Dr. Dias Sapeco, found 24 injuries on the person of the deceased including nail imprint marks of semilunar shapes oat the neck in the front region in an area of 17 x 7 cms. Apart from this there were fractures of 2nd to 10th ribs along the mid clavicular arid posterior axillary lines and of the left 3rd to 5th ribs along the mid clavicular lines. On internal examination, he has found there was leceration of liver in an area of 13 x 3 x 9 cms. along right diaphragmatic surface and laceration of spleen in an area of 5 x 1 x 1 cms. along visceral surface. According to Dr. Dias Sapeco, injuries Nos. 1 to 24 as well as rupture of spleen and liver could be due to repeated trauma by blunt force like fist blows, kicks or a person repeatedly sitting on the deceased and the death ordinarily would occur by a collective and cumulative effect of these assaults. 5. along visceral surface. According to Dr. Dias Sapeco, injuries Nos. 1 to 24 as well as rupture of spleen and liver could be due to repeated trauma by blunt force like fist blows, kicks or a person repeatedly sitting on the deceased and the death ordinarily would occur by a collective and cumulative effect of these assaults. 5. The main defence put forward by the Counsel for the appellant is that there was no eye witness to speak about the nature of the assaults by the accused on the deceased because the wife ran away from the scene immediately on seeing that the accused started assaulting on the body of the deceased after sitting on it and when she came back alongwith P.W. 6 and P.W. 8, the door was found closed and when it was broke open, it was found that the deceased was lying on the ground. The learned Counsel for the appellant argued that as all the vital witnesses turned hostile, the finding of the Court below that the offence was proved cannot be sustained. 6. The learned Public Prosecutor submits that the circumstances of the occurrence will clearly go to show that only because of the act of the accused and that alone, is responsible for the death of the deceased. The learned Public Prosecutor also argued that merely because the vital witnesses turned hostile the veracity of the evidence led before the Court cannot be brushed aside. The learned Judge has rightly pointed out that even taking into account the testimony of those hostile witnesses, on admission made during the cross-examination by . P.W. 4, P.W. 5 and P.W. 7 it has been proved that the death of the deceased was caused by the accused; by him alone. 7. I do not find anything illegal in the arguments of the learned Public Prosecutor. The learned Counsel for the appellant further argues that even if there is evidence which is attributable against the appellant vis-a-vis the death of the deceased as he pleaded in 313 statement that he was heavily drunk and he was not in a position to know the consequences of what he was doing, the learned Trial Judge extensively considered this plea of the accused and rejected it because such plea is not available. In view of the discussion stated above, I do not find that the finding of the Court below that the appellant was guilty under Second Part of Section 304 of I.P.C. requires any interference by this Court. 8. The reason stated by the Court below for awarding 5 years rigorous imprisonment against the accused by the learned Sessions Judge that there was a scaling down from Section 302 I.P.C. to Section 304 Part II, I.P.C. requires some consideration. There cannot be any scaling down of the offence under law. Of course, the accused was originally implicated for Section 302 I.P.C. but in view of the evidence adduced, no offence under Section 302 I.P.C. was disclosed. Instead offence under Section 304 Part II was proved against the accused and this fact cannot be treated as scaling down of offence. Observation of the Trial Court that it has awarded 5 years of imprisonment because of the scaling down of the offence, is not correct. I do not think that it is a sustainable circumstance to be stated for awarding imprisonment. I find that accused is the only male member of the family left. Even though mother had filed complaint with the police for having committed the murder of her husband by her son, in fact, she is left without anybody to be looked after in her old age. So also he has a sister. All these circumstances have to be taken into consideration. And secondly, the plea of the accused is that since he was heavily drunk on that day and he was not aware of the consequences of what he was doing also will have to be taken into consideration in awarding the imprisonment, particularly when he was found guilty under Section 304 Part II where knowledge of consequence is an essential element of the offence. In these circumstances, I think that the sentence of imprisonment against the accused was on e. little higher side. Therefore, it is sufficient that the attested is awarded rigorous imprisonment for 3 years. 9. In view of this, the appeal is partly allowed and the finding of the Court below is confirmed but the awarding of sentence is modified to the extent of 3 years instead of 5 Years. The sentence will commence, as pointed out by the lower Court, on 5.12.1992. 10. In the circumstances, there will be no order as to costs. In view of this, the appeal is partly allowed and the finding of the Court below is confirmed but the awarding of sentence is modified to the extent of 3 years instead of 5 Years. The sentence will commence, as pointed out by the lower Court, on 5.12.1992. 10. In the circumstances, there will be no order as to costs. Appeal allowed partly.