JUDGMENT - N.J. PANDYA, J.:---This Appeal is field by the State against the order of acquittal that came to be passed by the learned Sessions Judge, South Goa, in Sessions Case No.19/94 on 28th May, 1996. 2.The accused/respondent was facing charge of murder in connection with the death of one Harishchandra Naik. Originally, the case of the prosecution was that the accused was hired by another person, one Pandurang Babu Naik and was in fact paid Rs. 1, 00, 000/- to do away with Harishchandra Naik as Pandurang and Harishchandra had enmity. They were brothers. 3.During the course of the trial, so far as the said theory of conspiracy and payment of Rs. 1,00,000/- is concerned, nothing could be brought out and, in fact, the said person Pandurang Babu who was originally joined as accused No. 2 was discharged. This left only the accused/respondent facing the charge of murder. 4.So far as the details of the incident are concerned, it is the case of the prosecution that on 10th January, 1994 at about 4.15 p.m. the accused/respondent engaged a motor-cycle pilot Joseph Gomes, P.W. 3. The motor-cycle was hired at Margao for going to Partagal. On the way, near about the town of Canacona, they stopped at a bar known as "Jana Bar" and had drinks. In fact, the motor-cyclist Joseph Gomes took only soft drink, while the respondent helped himself to two or three pegs of whiskey. The effect of the drink was marked in the display of the movements of the respondent and, therefore, the owner of the bar refused to serve any more drinks to him. In the course of drinking the respondent and the motor-cyclist were sitting inside the bar-room initially, but since the respondent complained that he was feeling hot they moved out into the verandah. It being the month of January, soon daylight was over and the respondent/accused with the said motor-cyclist continued to sit outside. 5.About 15 to 20 minutes of the respondent/accused and the motor-cyclist coming out into the verandah, the said Harishchandra also came to that very Bar. 6.When the bar owner refused to serve the accused, the accused and the motor-cyclist were about to leave when the accused expressed desire of urination. The bar is situated on N.H. 17 going from Margao to Karwar. 6.When the bar owner refused to serve the accused, the accused and the motor-cyclist were about to leave when the accused expressed desire of urination. The bar is situated on N.H. 17 going from Margao to Karwar. The motor-cycle on which the said pilot Gomes had brought the accused was near to the bar and across the road the motor-cycle of the said Harishchandra was parked. 7.The accused had chosen to cross the road for the aforesaid purpose and was near the motor-cycle of the deceased Harishchandra. Harishchandra also finished his business in the bar and went towards the motor-cycle. He was about to sit on it when the accused, who was standing there, apparently had an altercation with him, details of which are not there. All that is indicated is that the accused threw something on the face of the said Harishchandra and thereafter took out a knife from under his shirt on the waistband and inflicted blows. So far as the said pilot Gomes is concerned, upto this part of the incident he has alone seen the incident, as per his version. 8.The importance of limiting his knowledge about the incident to this part only can readily be appreciated when it is noted from the deposition of Dr. Madhukar Usgaokar, P.W.18, alongwith the post-mortem note produced by him, that the deceased had three stab wounds, one of which was in the chest region, another in the stomach region towards right side, what is described as hypocondium part and one in the lumbar region. 9.So far as the chest injury is concerned, it was towards the right side and had penetrated the lung as well the liver. The stomach injury had brought omentum out and the injury in lumbar also had brought out parts of the intestine. 10.In the opinion of the doctor, the all-important stomach injury could have proved fatal. Injuries having been caused by sharp cutting instrument like knife, particularly, M.O. 9, there is not much controversy. 11.There is no doubt controversy as to whether M.O.9 was ever used by the accused and was ever employed for commission of the crime because the learned Sessions Judge did not believe the evidence as to its recovery, nor did he believe the evidence as to the link sought to be established between the said weapon and the accused. 11.There is no doubt controversy as to whether M.O.9 was ever used by the accused and was ever employed for commission of the crime because the learned Sessions Judge did not believe the evidence as to its recovery, nor did he believe the evidence as to the link sought to be established between the said weapon and the accused. 12.However, as rightly observed by the learned Sessions Judge, everything would hinge on the testimony of P.W. 3, the said pilot Joseph Gomes. The learned Sessions Judge, in his judgment, has discussed the matter at length and so far as the testimony of P.W.3, is concerned, he has dealt with it almost after reproducing his entire testimony both in chief and cross, in para 10 onwards at page 18 of the paper book. Finally, at the end of paragraph 12, pages 190 to 191, he comes to conclusion that P.W. 3's testimony does not inspire confidence. 13.The main reason for him to come to this conclusion is what he considers to be a discrepancy between expert testimony in the form of doctor's evidence, P.W. 18, read alongwith Post Mortem Report. In the Post Mortem Report there are three injuries referred to by the doctor, while this witness merely states about one injury. Moreover, it being a dark night or early evening in the month of January, the learned Judge felt that without the help of artificial light, the witness could not have seen anything and therefore, his story should be discarded. 14.So far as injuries are concerned, one more doctor has been examined as P.W. 8, because inspite of the injury the deceased was lying for sometime and was treated by the said witness, P.W. 8, Dr. Suresh Mahale. The clear description in the case papers produced by P.W. 8, make out that the injuries were of the nature of incised wounds capable of being caused by sharp cutting instrument like knife. 15.No doubt it is true that the accused does not belong to the area. According to the prosecution case he was brought from outside and this seems to be made out by the fact that in the course of the hearing of this Appeal also, to secure his presence efforts were made to bring him from Bombay and finally he could be located. According to the prosecution case he was brought from outside and this seems to be made out by the fact that in the course of the hearing of this Appeal also, to secure his presence efforts were made to bring him from Bombay and finally he could be located. 16.Through P.W. 16 he tried to make out a case that he came to attend a wedding. However, so far as the accused himself is concerned, in further statement under section 313 Criminal Procedure Code, he has taken the stand of total denial. This would mean that according to him he was no where nearby the place of incident, nor was he ever carried on motor-cycle by the said P.W. 3. 17.As against that, Joseph Gomes, P.W. 3 as far as the incident is concerned states that he picked up the passenger and took him to the aforesaid place in Canacona and with great difficulty persuaded him to leave the Bar, and then the incident happened. The story of P.W. 3 does not stop there. On seeing this incident suddenly happening this witness was very much frightened. At that time he was just in the process of crossing the road because he found that the accused/respondent was hardly able to control himself and was apparently under the influence of alcohol. When he was frightened, the natural move on his part was to come back to his motor-cycle and putting the key in the ignition was about to start the motor-cycle. It is at that time that the accused sat on the pillion seat and pointing knife on the neck of the said P.W. 3 made him drive back towards Margao. 18.On the way, nearby a parked motor-cycle when the witness P.W. 3 slowed down his motor-cycle, he was given a push by the accused and the witness fell down and the motor-cycle also fell down. The accused made good his escape. 19.There came on the scene one of the brothers of the deceased, who knew P.W. 3 Joseph Gomes and at his instance P.W. 3 was given medical aid and from there he was taken to the police. The police took him in custody, obtained remand orders and thereafter he was kept for prosecution record as a suspect. Later on he came to be released. The police took him in custody, obtained remand orders and thereafter he was kept for prosecution record as a suspect. Later on he came to be released. 20.In this background, when the said witness P.W. 3 had the occasion of carrying the accused as a passenger upto a distance of about 50 kms., as per the questions put to him in cross-examination and when for almost one and half hour the accused/respondent and the said P.W. 3 sat together in the bar, though they were meeting for the first time, so far as ability to see and narrate whatever he had seen, particularly the material part relevant to the incident, it is difficult to hold that his testimony cannot be accepted. 21.So far as the apparent contradiction in the oral testimony and the medical evidence is concerned, that was material to be considered and only if the stand of the prosecution through the witness P.W. 3 was that he had seen the entire incident and yet instead of narrating about all the three injuries he was talking about one injury only. The witness has stated whatever he has seen and his occular testimony is restricted to the first blow only. It is not the prosecution case that this witness had seen other blows also being inflicted. 22.So far as want of artificial light is concerned, in the aforesaid background of physical proximity shared by the said P.W. 3 with the accused for almost three hours or more and when in the background of the situation that witness is waiting eagerly and anxiously for his passenger, who is apparently under the influence of alcohol, to return so that P.W. 3 can reach him safely back to Margao, the fact that he saw the accused standing there urinating nearby the motor-cycle of the deceased and suddenly blow being given by the accused, there could be no hesitation on the part of the witness to identify as to who the assailant is. 23.A doubt is sought to be created about his inability to see for want of light. In our opinion, in the aforesaid background of facts this is just an attempt, but it cannot succeed. 23.A doubt is sought to be created about his inability to see for want of light. In our opinion, in the aforesaid background of facts this is just an attempt, but it cannot succeed. 24.Once the evidence is appreciated in this light, it is quite obvious that the prosecution has succeeded in proving beyond reasonable doubt the fact that the accused/respondent has inflicted one blow in the stomach region with a knife, on the deceased. 25The conclusion of the learned Sessions Judge based upon the aforesaid reasoning as to the appreciation of evidence of P.W. 3, in our opinion, therefore, cannot be sustained. 26.Once that is taken away as stated above, the case of the prosecution against the accused is established. The Appeal of acquittal is, therefore, to be allowed. 27.It is of course another thing as to which offence in fact the accused has committed. 28.The learned advocate appearing for the accused had alternatively argued that the offence is of a lesser nature, like may be, grievous hurt, punishable under section 326 of the Indian Penal Code. This submission is made on the basis that there is no clarification whatsoever in the aforesaid background of three injuries having been caused and as to which of the three injuries could have caused death. That being the position, when only one blow is said to have been established and the link of the accused with that blow is accepted to have been established for the aforesaid reasons, so far as the accused is concerned, in the absence of any other material, he should be held to have committed the least possible offence. 29.But for the testimony of P.W. 18, we would have readily agreed so far as the submission as to the offence punishable under section 326 is concerned. However, this being a blow which could have been resulted in fatality, the question of treating the offence to be one of grievous hurt would not arise. 30Then certainly would be the question whether it is an offence punishable under section 302 or punishable under section 304 Part I or Part II I.P.C. 31.In our opinion, the learned advocate for the accused/respondent has rightly submitted that the prosecution has not been able to establish the case of evidence on the part of the accused to cause death of Harishchandra. 32.On going through the records we find no evidence at all as to why Harish- chandra was picked up at the relevant time by the accused for the treatment that the accused gave him. We are conscious of the fact that when an offence is said to have been committed under the Indian Penal Code, motive is hardly relevant. However, in the absence of motive, so far as the required intention and burden cast on the prosecution to establish the same is concerned, the prosecution, if it insists on offence being that of murder punishable under section 302, would have to bring it within any of the four corners as set out in section 300 I.P.C. 33.We do not find any material and therefore, we straightaway come to the conclusion that it is not punishable under section 302 I.P.C. It was further alleged on behalf of the accused/respondent that the offence, if any, should be held to be punishable under section 304 Part II. 34.This submission is made mainly in the aforesaid background of the accused/respondent being found under the influence of alcohol and in the absence of evidence as to having entertained any intention whatsoever, at best knowledge could be attributed to him and therefore, an act punishable under section 304 Part II can be said to have been committed. We accept the submission and hold accordingly. 35.As the accused/respondent was acquitted by the Sessions Court he could not have heard him on the question of punishment. 36.As we are allowing the appeal and having come to the aforesaid conclusion, we now proceed to hear the accused/respondent with regard to punishment. 37.The accused/respondent understands Marathi. He has studied upto 10th standard. My learned Brother had conversed with him in Marathi and after explaining to him our conclusions in brief had told him to make his submission with regard to the punishment. He is aged 26 years. 38.The family background given by the accused/respondent indicates that he has got two brothers and one sister. He is unmarried and is looking after his parents. He is running a small business of manufacture of chocolates in Bombay. He says that it is his first offence and so far he has never involved in any illegal activity. He, therefore, prays for being treated leniently. He is unmarried and is looking after his parents. He is running a small business of manufacture of chocolates in Bombay. He says that it is his first offence and so far he has never involved in any illegal activity. He, therefore, prays for being treated leniently. 39Looking to these facts and in the aforesaid background of his family history, we are of the opinion that he should be awarded five years of Rigorous Imprisonment with a direction that set off for the period that he remained as under-trial prisoner be given to him. 40.Accordingly, the accused/respondent is awarded five years of Rigorous Imprisonment, with benefit of the set off. Appeal allowed with sentence reduced. *****