Judgment :- U.V. BAKRE, J. This appeal is directed against the judgment dated 26/4/2006 and the order dated 28/4/2006 passed by the learned Sessions Judge, Panaji in the Sessions Case No.28 of 2004, thereby convicting the appellant for offence punishable under Section 302 of the Indian Penal Code (I.P.C.) and sentencing him to undergo life imprisonment and to pay fine of Rs.5000/- in default to undergo simple imprisonment for six months. The appellant shall hereinafter be referred to as the accused. 2. The accused was tried for the offence punishable under section 302 of the I.P.C for having committed murder of one Shri Ashok Dessai. 3. The case of the prosecution, in short, is as follows: On 21/2/2004 at about 15.00 hours Shri Ashok Dessai, the Junior Technical Assistant of Indian Council of Agricultural Research, (ICAR) Old Goa and a labourer Praful Khandeparkar were in the cashew experimental plot situated at ICAR, KVK, Carambolim and said Praful was plucking cashew apples whereas said Ashok Dessai was supervising the said work. At that time, the accused who was a contract labourer assigned with the duty of taking care of goats unit of the ICAR Research complex was grazing the goats in the said cashew plantation. Ashok Dessai, therefore told the accused to take the goats out of the cashew plantation and accordingly the accused left the place with the goats, but after sometime, he again came along with the goats to the same cashew plantation and he had a danda (bamboo stick) with him. When Ashok Dessai questioned the accused as to why he had again brought the goats to the cashew plantation, the accused assaulted Ashok Dessai by giving blows with that danda on his head. Ashok Dessai fell unconscious on the ground and he was taken to the Goa Medical College hospital. 4. On 21/2/2004, PW-25, Head Constable, Anant Sawal was deputed to the Goa Medical College hospital Bambolim (G.M.C.) by Assistant Sub-Inspector, R. N. Shetgaonkar, of Old Goa Police Station, since information was received about the admission of Ashok Dessai to the G.M.C. in a case of assault on him by the accused at KVK cashew plantation. Upon receiving this information, PW-25 visited the G.M.C. but the injured Ashok was not in a fit condition to give statement. ASI Shetgaonkar made the station diary entries, in respect of this incident, the extracts of which are at Exhibit 58-colly. Upon receiving this information, PW-25 visited the G.M.C. but the injured Ashok was not in a fit condition to give statement. ASI Shetgaonkar made the station diary entries, in respect of this incident, the extracts of which are at Exhibit 58-colly. PW-26, P.I. Gurudas Gawde, upon receiving the information went to G.M.C. and learnt that the injured was shifted from ward no.120 to the operation theater for treatment. PW-1, Dr. V.S. Korikanthimath, the Director of ICAR lodged the complaint at the Old Goa Police Station which complaint is at Exhibit 10. Crime No.21/2004 was registered initially for the offence punishable under sections 333 and 307 of the Indian Penal Code against the accused by PW-26. 5. PW-26 then visited the place of the incident and drew the panchanama of the scene of offence and sketch which are at Exhibit 21-colly. The statement of other witnesses were recorded and the accused who was absconding was traced and arrested on 22/2/2004. On 23/2/2004, the accused made the disclosure statement about the weapon of assault that is the danda which was recovered at his instance under section 27 of the Evidence Act, under the panchanama which is at Exhibit 24 in the presence of pancha witnesses namely PW-7, Mahesh Kumar Mulani and PW-17, Dr. Avinash Nirmale. 6. The injured Ashok Dessai succumbed to the injuries on 25/2/2004, due to which PW26 deleted Section 307 of the I.P.C and added Section 302 of the I.P.C. to the said crime No.21/2004. Inquest panchanama was drawn and the post mortem examination of the dead body of Ashok Dessai was done by PW-12, Dr. E.J. Rodrigues. The articles were forwarded to the Central Forensic Science Laboratory at Hyderabad and the charge sheet came to be filed upon completion of the investigation. 7. The prosecution, in support of its case, examined altogether 26 witnesses. As already stated above, PW-1, Dr. V.S. Korikanthimath lodged the complaint Exhibit 10. He is not an eye witness. PW-2, Maulla Suleman Balbatti was informed by one Suresh Naik about the incident and he in turn informed the same to PW-1. PW-3, Shailesh Faldessai is one of the panch witnesses for the inquest panchanama (Exhibit 13-C), over the dead body of Ashok Dessai. PW-4, Praful Anil Khandeparkar is the sole eye witness to the incident. PW-2, Maulla Suleman Balbatti was informed by one Suresh Naik about the incident and he in turn informed the same to PW-1. PW-3, Shailesh Faldessai is one of the panch witnesses for the inquest panchanama (Exhibit 13-C), over the dead body of Ashok Dessai. PW-4, Praful Anil Khandeparkar is the sole eye witness to the incident. PW-5 Ravindra G. Hegde is the Junior Engineer of P.W.D, W.D-V, Panaji who has drawn the sketch of the spot of the incident, which sketch is at Exhibit 17 colly. PW6, Kusta Salelkar is one of the panch witnesses for the panchanama of the scene of offence which is at Exhibit 21 colly. PW-7, Mahesh Kumar Mulani and PW-17, Dr. Avinash Nirmale acted as panch witnesses for the disclosure statement made by the accused and the recovery of the danda at the instance of the accused and the said disclosure statement/recovery panchanama is at Exhibit 24. PW-8, Mohan Korgaonkar is one of the panch witnesses for the panchanama of the seizure of the clothes of the deceased, which panchanama is at Exhibit 26. PW-9, Gokuldas Kaskar was working as a gardener in ICAR at Old Goa. PW-10, Amol Naik is one of the panch witnesses for the arrest panchanama in respect of the accused. The clothes worn by the accused were attached under this panchanama which is at Exhibit 29. PW-11, Yoganand Gaude was working as an electrician in ICAR at Old Goa. PW-12, Dr. E.J. Rodrigues conducted the post mortem examination on the dead body of Ashok Dessai. The memorandum of autopsy is at Exhibit 32- colly. PW-13, Hirappa Chalwadi was working as a driver for ICAR at Old Goa. PW-14, Dr. Rosario Colaco was working as Junior Resident in Neurosurgery Department of G.M.C at the relevant time and he had informed the police that Ashok Dessai was not in a fit condition to give statement. The certificate was issued by Dr. Anthony Gomes, which is at Exhibit 40. PW-15, Suresh Waman Naik was also working as a driver in said ICAR at Old Goa. PW-16, Dr. Richa Saxena was the Senior Resident, Casualty, G.M.C, Bambolim and she had examined Ashok Dessai on 21/2/2004 at about 4.05 p.m. The certificate issued by her is at Exhibit 45. PW-18, Shraddha Nirmale is the wife of PW-17. PW-19,Vinayak Kulkarni was working as a Technical Officer at ICAR Old Goa. PW-16, Dr. Richa Saxena was the Senior Resident, Casualty, G.M.C, Bambolim and she had examined Ashok Dessai on 21/2/2004 at about 4.05 p.m. The certificate issued by her is at Exhibit 45. PW-18, Shraddha Nirmale is the wife of PW-17. PW-19,Vinayak Kulkarni was working as a Technical Officer at ICAR Old Goa. PW-20, Advirao Dessai was working as a Scientist at ICAR Old Goa. PW-21, Libania Estrocio is the house wife who had rented out one of the rooms close to her house to the accused. PW-22, Shushant Shantran Sawant was a constable attached to the Old Goa Police Station. PW-23, J.R. Faleiro was working as a Junior Scientist at ICAR, Old Goa. PW-24, Vishwesh Karpe was then working as P.I. at Old Goa, police station. PW-25, Anant Sawal was working as Head Constable at Old Goa Police Station at the relevant time. Lastly, PW-26, Gurudas Gawde is the Police Inspector of Old Goa Police Station, who investigated the case and filed the charge-sheet. 8. Case of the accused was of denial simpliciter. He did not examine any defence witness. 9. Upon consideration of the entire evidence on record, the learned trial judge came to the conclusion that the prosecution has proved beyond reasonable doubt that the accused has committed the offence of murder of Ashok Dessai. The accused has been convicted and sentenced for the said offence, as stated in the opening paragraph. The accused was in custody from the date of his arrest that is from 22/2/2004 and the sentence has been deemed to have commenced from that date. 10. Heard arguments. Learned Advocate Ms. Caroline Collasso argued on behalf of the accused whereas learned Public Prosecutor Mr. C.A. Ferreira argued on behalf of the State. 11. Perused the entire record and proceedings. 12. The fact that the deceased Ashok Dessai died homicidal death is not seriously disputed by the accused. Even otherwise, the evidence of PW-16, Dr. R. Saxena who first examined the injured Ashok Dessai on 21/2/2004 at about 4.05p.m. reveals that she found a contused lacerated wound of 7.5 cms. x 2 cms. x 1 cm. on the left side forehead and another wound of 6 cms. x 2 cms. x 1 cm. on left side forehead. The hurt certificate is at Exhibit 45. R. Saxena who first examined the injured Ashok Dessai on 21/2/2004 at about 4.05p.m. reveals that she found a contused lacerated wound of 7.5 cms. x 2 cms. x 1 cm. on the left side forehead and another wound of 6 cms. x 2 cms. x 1 cm. on left side forehead. The hurt certificate is at Exhibit 45. There is evidence on record which reveals that the deceased expired while undergoing treatment at the G.M.C. The evidence of PW-12, Dr. E.J. Rodrigues read with the memorandum of autopsy which is at Exhibit 32- colly also reveals that there was a stitched laceration of 7.5 cms. on the left forehead and another stitched laceration of 6 cms. on the left side forehead of the deceased Ashok Dessai. There was extra vassation of blood present in the said two injuries and there was a fissure fracture of 8 cms. on right side frontal bone horizontal and craniectomy of 11 x 5 cms. area in left fronto temporo parietal bones with foam gel in situ. Dura was seen stitched at multiple places. There was left frontal craniectomy of 11cms. x 5cms. Subarechnoid haemorrhage was present all over the brain. The opinion given by PW.12 is that the cause of death was head injury vide the said injuries no. 1 and 2, which were caused due to blunt force impact by object and which were fatal in ordinary course of nature. The evidence of PW-12 also convincingly shows that the said injuries could not have occurred by a fall. From the nature of injuries and the parts of the body where they were inflicted and from the opinion of PW.12 that such injuries cannot be caused by a fall, we hold that the learned trial judge has rightly held that the death of Ashok Dessai was homicidal. 13. It is now to be seen as to whether the prosecution has proved beyond reasonable doubt that the accused is the author of the injuries sustained by Ashok Dessai, which resulted into his death. 14. 13. It is now to be seen as to whether the prosecution has proved beyond reasonable doubt that the accused is the author of the injuries sustained by Ashok Dessai, which resulted into his death. 14. From the evidence on record, which has been minutely scrutinized by us, the following undisputed facts emerge: (i) The deceased Ashok Dessi was working as a Junior Technical Assistant and was attached to Horticulture section of ICAR at Old Goa at Krishi Vigyan Kendra (KVK), Carambolim under the Scientist PW-20, Advirao Dessai; (ii) The accused was a contract labourer at ICAR Old Goa and was assigned the duty of taking care of goats unit under the guidance of PW-17, Dr. A. Nirmale at (KVC) Carambolim; (iii) Grazing goats was one of the duties of the accused; (iv) There was experimental cashew plantation at KVK Carmbolim; (v) Praful Khandeparkar, PW-4 was also employed as a labourer in ICAR Old Goa and was working for the Horticulture unit and cashew plantation of KVK Carambolim was one of the units where she used to work; (vi) The accused had gone to the said cashew plantation at KVK Carambolim on the relevant day of the incident at about 2.20 p.m. along with the goats for grazing and the deceased had told him to take the goats in the forest area where there is no cashew plantation and as per the instructions of the deceased the accused had taken away the goats to the forest area; (vii) The accused always used to carry the said danda /bamboo stick whenever he used to take the goats for grazing. 15. 15. The evidence of PW-4, Praful Khandeparkar inter-alia reveals as follows: (i) On the day of the incident, she had gone to the said cashew plantation along with deceased Ashok Dessai and it was found that the accused was grazing goats in the cashew plantation due to which the deceased told him not to bring the goats in the cashew plantation and to take them towards the jungle side where there is no cashew plantation; (ii) There was some discussion between the accused and the deceased over the said issue after which the accused took the goats out of the cashew plantation and PW-4 and the deceased started collecting cashew nuts; (iii) After sometime, the accused once again came to the cashew plantation with the goats and the deceased once again questioned as to why he had come again with the goats at which time the accused went behind the deceased with a bamboo stick and assaulted the deceased by giving a blow of the said bamboo stick on the rear part of his head, as a result of which Ashok Dessai fell down and thereafter the accused continued giving blows of the bamboo stick on the head of the deceased; (iv) The deceased sustained bleeding head injuries and was unconscious and when he was being assaulted, PW-4 had shouted for help by saying “Masterak marlo, marlo Dhava Dhava yeyat yeyat (supervisor is assaulted come running); (v) PW-4 called out to Gokuldas, Suresh, Kanchan and Prakash and when they came to the scene of offence, the accused ran away with the goats and the bamboo stick; (vi) PW-4 told Gokuldas that the accused had assaulted Ashok Dessai with bamboo stick; (vii) Ashok Dessai was taken to G.M.C. 16. Ms Caroline Collasso, the learned counsel for the accused, argued that there is exaggeration in the evidence of PW-4 who says in her cross-examination that the accused had inflicted 10-12 blows on the head of the deceased. She pointed out that as per the medical evidence there are only two injuries sustained by the deceased and both are on the left frontal side of the head. According to her, if the blows were given from the back side of the deceased, the injury had to be on the rear side of the head. She pointed out that as per the medical evidence there are only two injuries sustained by the deceased and both are on the left frontal side of the head. According to her, if the blows were given from the back side of the deceased, the injury had to be on the rear side of the head. She further contended that if 10 to 12 blows were given than there had to be more injuries on the head. She contended that the sole testimony of PW-4, on account of the above, could not have been relied upon by the trial judge. In this regard the evidence of PW-12, Dr. E.J. Rodrigues read with the memorandum of autopsy (Exhibit 32-colly) reveals that the deceased had also sustained a fissure fracture of 8cms. length on right side frontal bone which goes to indicate that the blow/s was/were also given on the right side of the head of the deceased. Further, the evidence of PW-12 read with the memorandum of autopsy also reveals that craniectomy was performed on the deceased by the neurosurgeon since the skull bones were fractured and were in pieces. Therefore, the above suggests that there were multiple injuries besides the said two injuries, and the fissure fracture, as has been rightly pointed out by the learned trial Judge. Thus, it is difficult to believe that the evidence of PW-4 is inconsistent with the medical evidence or that there is exaggeration in her deposition. 17. Learned Advocate Ms. Collasso further argued that there is inconsistency in the medical evidence given by PW-12 and PW-16. PW-16, in her cross examination, has stated that the injuries no. 1 and 2 could be caused due to violent fall on any hard surface, whereas PW-12 has stated that the said two injuries could not have been caused due to fall on a stone and has further denied the suggestion that the said injuries could be caused by violent fall on the stone. In this regard, it should be kept in mind that PW-16 was only a Senior Resident of Casualty Department of G.M.C. and she had only carried out the superficial examination of the injured Ashok Dessai. PW-12 is the Associate Professor of Forensic Medicine, M.D. (Bom.), G.M.C and thus an expert and he had conducted the post mortem examination which included external as well as internal examination. PW-12 is the Associate Professor of Forensic Medicine, M.D. (Bom.), G.M.C and thus an expert and he had conducted the post mortem examination which included external as well as internal examination. Therefore, it is the opinion given by PW-12 which would prevail over that given by PW-16. Be that as it may, PW-16 has herself answered to the Court question that Dr. E.J. Rodrigues would be in a better position to state whether the injuries no.1 and 2 could be caused due to a fall or not since he had done the post mortem of the deceased. In the circumstances above, PW-4 has rightly denied the suggestion that Ashok Dessai had sustained injuries due to fall or that he had climbed cashew tree and slipped and fallen down. In our opinion, there is no discrepancy in the medical evidence of the two medical officers. The medical evidence fully supports the testimony of PW-4. 18. It was further argued by the learned counsel for the accused that PW-4 has been wrongly considered by the learned trial Judge as an independent witness though she was a labourer of ICAR at Old Goa. That way, the deceased was a Junior Technical Assistant of ICAR Old Goa and the accused was also a contract labourer working for ICAR Old Goa. The evidence of PW-4 and for that matter the entire evidence on record, does not reveal any reason for her to falsely implicate the accused in such a serious crime. There was no enmity between PW-4 and the accused nor there was any friendship between PW-4 and the deceased. 19. Learned Advocate Ms Collasso pointed out that PW-4, Praful Khandeparkar was cross-examined on 9/3/2005 that is after about two years from the date of the incident. According to the learned counsel, PW-4 could not have identified the danda/bamboo stick after two years as the same by which the accused had assaulted the deceased. In this regard, no explanation has been sought from PW-4, in her cross-examination, as to how she could identify the bamboo stick at M.O.8 even after two years. Intelligence and memory differs from person to person and unless the same is tested in cross-examination, nothing can be commented. In this regard, no explanation has been sought from PW-4, in her cross-examination, as to how she could identify the bamboo stick at M.O.8 even after two years. Intelligence and memory differs from person to person and unless the same is tested in cross-examination, nothing can be commented. In any case in the further cross-examination of PW-4 done on 13/1/2006, it is admitted that the accused always used to carry the same danda/bamboo stick in his hand whenever he used to take the goats for grazing. The identification of the danda at M.O.8 by PW-4 cannot therefore be faulted with. 20. The said danda/bamboo stick at M.O.8 was recovered at the instance of the accused. In this regard, there is on record the evidence of PW-7, Mahesh Kumar Mulani who acted as one of the panch witnesses in the panchanama of the disclosure made by the accused regarding the said danda and of the recovery of the said danda at the instance of the accused, which panchanama is at (Exhibit 24). There is on record the evidence of the second panch witness namely PW-17, Dr. Avinash Nirmale and lastly there is evidence of the Investigating Officer namely PW-26, Shri Gurudas Gawde. The evidence of these witnesses reveals that on 23/2/2004 when the accused was in police custody he disclosed that he had kept the wooden danda under the ladder/staircase leading to the goat shed. The evidence of the said witnesses further reveals that the accused volunteered to show the same and thereafter, the accused took them to the goat shed and removed the bamboo stick which was under the ladder and handed over the same to PW-26. PW-7 has categorically stated that the said bamboo stick was not visible till the accused had removed the same. The evidence of PW-17 and PW-26 reveals that there were stains on the said danda which looked like blood stains. The evidence further reveals that the said danda was duly packed and sealed. 21. The evidence on record reveals that the same danda attached under the panchanama (Exhibit 24) was forwarded to C.F.S.L., Hyderabad and the report of C.F.S.L. which is at (Exhibit 64) shows that blood was detected on the said danda, though the origin of the blood could not be detected due to disintegration. 21. The evidence on record reveals that the same danda attached under the panchanama (Exhibit 24) was forwarded to C.F.S.L., Hyderabad and the report of C.F.S.L. which is at (Exhibit 64) shows that blood was detected on the said danda, though the origin of the blood could not be detected due to disintegration. It is seen from the records that the learned A.P.P. had filed an application under Section 293 of Cr.P.C. before the learned trial Judge for taking on record the said C.F.S.L. report for which the learned advocate for the accused had given no objection. Accordingly, the C.F.S.L report was admitted in evidence as Exhibit 64. 22. It is true that it is not known whether the blood detected on the said danda was human blood or not and the blood group is also not known. However, that does not mean that the recovery of the said danda has no relevance at all. In the present case, the same danda has been identified by PW-4 as the weapon of assault used by the accused and PW-12, Dr. E. Rodrigues has opined that the injuries no. 1 and 2 could be caused by the said danda which is at Exhibit 8. 23. It was argued by the learned advocate Ms Collasso that admittedly the accused used to carry the danda/bamboo stick for the purpose of grazing goats and he used to keep the danda at the usual place that is below the ladder and used to close the goat unit and hand over the keys of that unit to PW-17 or PW-18. She pointed out that PW-7 has stated in his cross-examination that there were one or two small dandas near the ladder. In such circumstances, according to the learned counsel for the accused, it cannot be held that the danda was hidden by the accused. The evidence on record does not point out that it was known to anyone that the accused had kept the danda/bamboo stick which is the subject matter of the present case at the same place where he usually used to keep the same. In fact, the evidence on record reveals that the said danda was not visible until it was lifted by the accused. There is no scope to doubt the evidence regarding the recovery of the said weapon of assault at the instance of the accused. In fact, the evidence on record reveals that the said danda was not visible until it was lifted by the accused. There is no scope to doubt the evidence regarding the recovery of the said weapon of assault at the instance of the accused. We have no reason to disagree with the findings of the learned trial Judge with regard to the recovery of the said weapon of assault at the instance of the accused. 24. The evidence of PW-23, Mr. J.R. Faleiro reveals that at about 3.15p.m., Dr. Ramchandra and Shri Balbatti told PW.1 that the accused had assaulted Ashok Dessai with danda. Assistant Sub Inspector Shetgaonkar had made station diary entry at the Old Goa police station to the effect that Shri J.R. Faleiro stated that Ashok Dessai, Junior Technical Assistant at ICAR was assaulted by the accused. Extract of the said station diary is at Exhibit 58- colly and it shows that Shri Faleiro had stated that the accused had assaulted Ashok Dessai by giving blow on his head and that this incident was witnessed by Praful Khandeparkar. 25. PW-11, Yoganand Gaude who was working electrician at ICAR, Old Goa, PW-13, Hirappa Chalwadi who was working as driver at ICAR and PW-19, Vinayak Kulkarni who was working as a Technical Officer in ICAR, have all stated that Praful Khandeparkar, PW-4 had told them that the person who was incharge of goats had assaulted Ashok Dessai. PW-19 has stated that at the relevant time the accused was in-charge of goats. Thus, the evidence of PW-11, PW-13 and PW-19, which has not been shaken in the cross-examination, strongly supports the ocular evidence of PW-4. 26. Learned Advocate Ms. Collasso has pointed out that the note no.3 in the statement of the accused under Section 313 of the Code of Criminal .Procedure (Cr.P.C.) does not mention that the answers given by the accused will be taken into consideration in the present trial. She further pointed out that the question no.20 pertaining jointly to three witnesses namely PW-11, PW-13 and PW-19 wrongly suggests that Praful was saying that the person in charge of goats had killed Ashok Dessai when in fact their evidence reveals that Praful was saying that the person incharge of goats had assaulted Ashok Dessai. She further pointed out that the question no.20 pertaining jointly to three witnesses namely PW-11, PW-13 and PW-19 wrongly suggests that Praful was saying that the person in charge of goats had killed Ashok Dessai when in fact their evidence reveals that Praful was saying that the person incharge of goats had assaulted Ashok Dessai. The learned counsel for the accused further lamented that material evidence on record has not been put to the accused for his explanation as for example the exact nature of injuries and opinions stated by the doctors and the station diary entry. She has relied upon “Shaikh Mohamed Salim Karimullah & Ors. Vs. State of Maharashtra” wherein the Division bench of this court has held that the circumstances which have not been put to the accused in his examination under Section 313 Cr.P.C. must be excluded from consideration and cannot be relied upon to base conviction of the accused. However, in the case supra, the two circumstances which were not put to the accused persons in their 313 Cr.P.C. statement were very vital and after excluding the other evidence, those were the only two circumstances which would connect the accused persons with the crime. Relying upon “Machender vs. Hyderbad State”( AIR 1955 SC 792 ), the Division bench observed that the appellants (accused persons) cannot be asked to give explanation at this stage, as suggested. The case of “Shaikh Mohamed Salim Karimulla”(supra) is not applicable to the facts and circumstances of the present case. 27. In the case of “Shivaji Sahabrao Bobade Vs. State of Maharashtra”[ AIR 1973 S.C. 2622 ], the Hon'ble Apex Court has observed thus: “It is trite law, nevertheless fundamental that the prisoner's attention should be drawn to every inculpatory material so as to enable him to explain it. This is the basic fairness of a criminal trial and failures in this area may gravely imperil the validity of the trial itself, if consequential miscarriage of justice has flowed. However, where such an omission has occurred it does not ipso facto vitiate the proceedings and prejudice occasioned by such defect must be established by the accused. In the event of evidentiary material not being put to the accused, the court must ordinarily eschew such material from consideration. However, where such an omission has occurred it does not ipso facto vitiate the proceedings and prejudice occasioned by such defect must be established by the accused. In the event of evidentiary material not being put to the accused, the court must ordinarily eschew such material from consideration. It is also open to the appellate court to call upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against him but not put to him and if the accused is unable to offer the appellate court any plausible or reasonable explanation of such circumstances, the court may assume that no acceptable answer exists and that even if the accused had been questioned at the proper time in the trial court he would not have been able to furnish any good ground to get out of the circumstances on which the trial court had relied for its conviction.” 28. In the case of “Paramjeet Singh Alias Pamma Vs. State of Uttarakhand”[(2010) 10 Supreme Court Cases 439], relied upon by the learned Public Prosecutor Shri Ferreira, it has been held that Section 313 Cr.P.C. makes it obligatory for the Court to question the accused on evidence and circumstances against him so as to offer accused an opportunity to explain the same. It is further held that however it would not be enough for the accused to show that he has not been questioned on a particular circumstance but he must show that such non-examination has actually and materially prejudiced him and has resulted in failure of justice. 29. It may be that each and everything which has come on record in the evidence of witnesses and which may be termed as inculpatory has not been put to the accused. But it is equally true that the said omission is not such which has actually and materially prejudiced the accused and has resulted in failure of justice. Therefore, we are not impressed by the contention of the learned counsel for the accused that the material and vital circumstances have not been put to the accused due to which he did not get opportunity to prove his defence. 30. In the present case, a minute scrutiny of the entire evidence of PW-4 shows that she has firmly stood the test of cross-examination and that she is the most natural and convincing witness and is wholly reliable. 30. In the present case, a minute scrutiny of the entire evidence of PW-4 shows that she has firmly stood the test of cross-examination and that she is the most natural and convincing witness and is wholly reliable. Her evidence has the strong support of the other circumstantial evidence discussed above. We hold that the learned trial Judge has rightly placed reliance on the evidence of PW-4. 31. It is pertinent to note that in the cross examination of PW-4 done after her recall on 13/1/2006, the following has come on record: “The accused used to always carry the said danda/bamboo stick in his hand whenever he used to take the goats for grazing. I say that the deceased Ashok had only told the accused not to bring goats in the cashew plantation. Ashok Dessai did not try to assault the accused. It is not true to suggest that there was fight between the accused and the deceased and that in the course of the fight that Ashok Dessai sustained injuries. It is not true to suggest that I was not present at the place of incident. I say that the police had not come to the cashew plantation at that time. I say that I was in the cashew plantation till Ashok Dessai was taken to the hospital and the police had not come to the cashew plantation till then. It is not true to suggest that Ashok Dessai had tried to assault the accused and that the incident had occurred only because of the said incident. It is not true to suggest that there was scuffle between the deceased and the accused and that in the course of the scuffle the deceased fell down and sustained injuries.” (copied from page 117 of the original record and proceedings i.e. from the deposition of PW-4). 32. From the above cross examination, it can be said that there is no dispute that the accused was present at the scene of offence at the time of the incident. According to the accused, there was a fight between him and the deceased and in the course of the scuffle the deceased fell down and sustained injuries. The accused has failed to prove his above defence. According to the accused, there was a fight between him and the deceased and in the course of the scuffle the deceased fell down and sustained injuries. The accused has failed to prove his above defence. In view of the evidence of PW-4 which is supported by the other evidence discussed above, it is proved beyond reasonable doubt that the accused assaulted the deceased by means of wooden danda on his head and caused his death. 33. The only point that now remains to be decided is whether the act of the accused in causing the death of the deceased amounts to murder or not. 34. Learned counsel for the accused Ms. Colasso has contended that the offence under Section 302 of I.P.C is not at all made out and the offence if at all made out would be under Section 325 of the I.P.C. or at the most under Section 304, part II of I.P.C. She has pointed out the following circumstances: (a) The evidence on record, more particularly that of PW-4 reveals that the incident had occurred on account of a petty dispute about grazing of goats in cashew plantation. (b) There was no previous enmity between the accused and the deceased. (c ) The accused obeyed the instructions of the deceased and took the goats away, for the first time. (d) The accused always used to carry the danda and had not specially brought the same for any criminal purpose. (e) After the incident the accused went back along with the goats and the danda and tied the goats in the shed and locked the goat unit and gave the key of the goats unit to PW-18. (f) The number of injuries sustained by the deceased are only three. 35. The learned counsel for the accused argued that in the circumstances above, it cannot at all be said that the accused had the intention to kill the deceased. She further pointed out that the incident took place on 22/2/2004 but the deceased died during treatment on 25/2/2004. She pointed out that scanning was not done immediately and therefore there was negligence of giving timely medical attendance to the deceased. She therefore argued that it can be only Section 325 of I.P.C. which is applicable to the facts of the case and in any case, at the most, Section 304 (II) of I.P.C is attracted. 36. She pointed out that scanning was not done immediately and therefore there was negligence of giving timely medical attendance to the deceased. She therefore argued that it can be only Section 325 of I.P.C. which is applicable to the facts of the case and in any case, at the most, Section 304 (II) of I.P.C is attracted. 36. Learned Public Prosecutor Shri C.A. Ferreira has relied upon “Karu Marik Vs. State of Bihar” [(2001) 5 Supreme Court Cases 284], wherein it has been held by the Hon'ble Supreme Court that the state of mind of the accused has to be gathered from available evidence and surrounding circumstances and intention may be inferred from the manner in which injuries were inflicted. In the said case the Hon'ble Apex Court held that clause II of Section 300 was attracted. According to learned Public Prosecutor, the case before us is similar to the case supra and and the conviction of the accused under section 302 of I.P.C. is proper and cannot be faulted with. A perusal of the judgment in the case supra reveals that the accused had given a blow with a chhura on the chest of the deceased and when she tried to run away, he caught hold of her hair, threw her on the ground and again assaulted with the chhura on the abdomen and on her back. All the injuries were grievous in nature and dangerous to life. In the present case, the weapon of offence is the wooden danda. It is reported that the said wooden danda has been already destroyed by the trial Court since no appeal was filed within the prescribed period. However, the evidence on record reveals that the said wooden danda/bamboo stick was about 3 feet long and of the diametre of about 1”. The injuries sustained by the deceased are also not of the type which were sustained by the deceased in the case supra. In our view, the case of “Karu Marik” supra is not applicable to the facts and circumstances of the present case. 37. The injuries sustained by the deceased are also not of the type which were sustained by the deceased in the case supra. In our view, the case of “Karu Marik” supra is not applicable to the facts and circumstances of the present case. 37. In the case of “Pulicherla Nagaraju alias Nagaraja Reddy” [ (2006) 11 Supreme Court Cases 444], the Hon'ble Apex Court has observed that the intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any premeditation; (vii) whether there was any prior enmity or whether the deceased was a stranger (viii) whether there was any grave and sudden provocation, and if so, the cause of such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. 38. In the present case, there is no dispute that the accused used to carry the same danda/bamboo stick for the purpose of grazing the goats. Therefore, the accused had not specially brought the said bamboo stick for assaulting the deceased. The incident occurred not because of any previous enmity between the accused and deceased on account of any serious reason. The incident occurred on account of a petty dispute regarding grazing of the goats in cashew plantation by the accused. The accused got enraged, as the deceased for the second time told him to go out of the cashew plantation along with the goats due to which in a heat of passion, he assaulted the deceased. There was a provocation from the deceased. The provocation contemplated by section 300 of I.P.C. should be of a character to deprive the offender of his self-control. There was a provocation from the deceased. The provocation contemplated by section 300 of I.P.C. should be of a character to deprive the offender of his self-control. For deciding whether there was such a provocation, the condition of the mind in which the offender was at the relevant time should be taken into account. To ascertain the condition of mind of a person, his status, personality, financial position and educational qualification are some of the relevant factors. The accused in the present case is a poor, illiterate labourer, who was doing the work of grazing goats. An educated person with high status and good financial position has power to think rationally and he may not get provoked easily. But a person of the status of the accused would be provoked easily. It can be said that the accused did not have any intention to kill the deceased, since there was no pre-meditation. However, it can certainly be said that the accused had the intention to cause such bodily injury to the deceased, as was likely to cause death. The case is squarely covered by Exception 1 to section 300 of I.P.C. Therefore, in our considered view, the offence that is committed by the accused is under Section 304, ( I ) of the I.P.C. 39. The learned trial Judge therefore has erred in holding that the accused has committed murder of the deceased. Hence, interference of this Court with impugned judgment and order is warranted as far as the nature offence committed by the accused is concerned and consequently with the sentence imposed. 40. In the result. the appeal is partly allowed. (a) The finding that the accused caused the death of the deceased is maintained. (b) The conviction and sentence against the accused for the offence under Section 302 of the I.P.C is quashed and set aside. (c) The accused is held guilty of the offence punishable under Section 304 (I ) of the I.P.C. (d) The accused is sentenced to undergo rigorous imprisonment for a period of 10 years and also to pay fine of Rs.2500/-in default to undergo simple imprisonment for three months, in respect of the offence under Section 304 (I) of I.P.C. (e) The period during which the accused was in custody from the date of his arrest that is from 22/2/2004 shall be set off, in terms of Section 428 of Cr.P.C.