Judgment :- U.V. Bakre, J. The appellant is the original accused no. 2 in Sessions Case no. 21 of 2008. He has been convicted by the learned Sessions Judge, Panaji (Trial Court) for offence punishable under Section 302 of the Indian Penal Code (I.P.C.) and sentenced to suffer life imprisonment and to pay fine of Rs. 10,000/-in default to undergo simple imprisonment for a period of two months. He is also convicted for offence punishable under Section 324 of I.P.C. and is sentenced to undergo imprisonment for a period of four months and to pay fine of Rs. 1000/-in default to undergo simple imprisonment for 15 days. Being aggrieved by the said Judgment dated 28/04/2011 and order dated 01/06/2011, the appellant has preferred the present appeal. 2. The appellant as accused no.2 and his father namely Manohar Sastikar, since deceased, as accused no. 1 were tried for the offence punishable under Sections 504, 324, and 302 read with Section 34 of I.P.C. During the course of the trial, accused no.1 expired and the case abated as against him. 3. Prosecution case, in brief, is as follows:- There was rivalry between the families of deceased Vasant Sastikar and the deceased accused no.1 Manohar sastikar, who were real brothers, on account of property dispute. On 11/05/2008 at about 19.30 hours at the general store “Trupti General Store”, at Kitla, Salvador-do-mundo, belonging to Sagun Sastikar, (P.W.1), both the accused, in furtherance of their common intention, abused P.W.1 and his family members with filthy language and assaulted P.W.1 and his brother Ravindra (P.W.10) with a chopper. Subsequently, on the same date at about 19.40 hours, inside the ancestral house, both the accused persons assaulted Vasant, father of P.W.1, aged about 65 years, with a brass lamp (Samai) on his head, thereby causing his instantaneous death. Dr. Sayed Sarfaraz Ahmed (P.W.14) examined P.W.1 at 20.30 hours and P.W.10 at 21.25 hours on 11/5/2008. 4. A complaint (Exhibit 22) was lodged by P.W.1, on 11/05/2008 upon which Crime No. 53 of 2008 for offence punishable under Sections 504, 324 and 302 read with Section 34 of I.P.C. came to be registered at 23.50 hours, by Police Inspector Devendra Gad (P.W.15). Panchanama of the scene of offence (Exhibit 40) was conducted by P.W.15 on 12/05/2008 in the presence of Shri Krishna Pednekar (P.W.6) and another panch witness. Panchanama of the scene of offence (Exhibit 40) was conducted by P.W.15 on 12/05/2008 in the presence of Shri Krishna Pednekar (P.W.6) and another panch witness. This panchanama was partly drawn in the shop/ kiosk bearing no. C-176/36 and partly in the ancestral house. Blood stains were found in the shop on a wooden table and on muddy floor, one plastic black and red coloured chappal of left leg foot and a pair of paragon chappals was found in that shop. Blood stains were noticed on the paragon chappal of left leg foot. One white and blue checks long sleeves shirt fully torn and having blood stains was found at the entrance. A Timax watch and a plastic black and red chappal of right leg foot were found on the road at the left side of the structure. A chopper(Koita) was found behind the shop where as one wooden danda with length of 22 inches was found by the side of the shop. A traditional brass lamp (Samai) was found lying on the floor near the place of worship inside the ancestral house. Dried blood stains were found in front of the cupboard. Photographs were also clicked at spot by Head Constable Mr. Shankar Komarpath(P.W.2) which are at Exhibit 29-colly. Inquest Panchanama (Exhibit 32) was drawn by Police Sub-Inspector, K. P. Sinari (P.W.13) for which Shri Sushant Mandrekar (P.W.3) and Anand Madkaikar (P.W.4) acted as panch witnesses. The dead body of deceased Vasant was referred to police surgeon of Goa Medical College, Bambolim by P.W.13 and Dr. E. J. Rodrigues (P.W.7) conducted the postmortem examination on 12/05/2008. The Memorandum of Autopsy is a part of Exhibit 44-Colly. Both the accused were arrested at about 24.00 hours on 12/05/2008 and since they had injuries on their person they were referred to Azilo Hospital, Mapusa. The arrest panchanama is at Exhibit 53 for which Babasaheb Shetty (P.W.8) acted as one of the pancha witnesses. The clothes of the accused persons were attached. Statement of witnesses were recorded by P.W.15. Exhibits were forwarded to Central Forensic Science Laboratory, Hyderabad(C.F.S.L.). The report received from C.F.S.L. is at Exhibit 76. On completion of investigation P.W.15 filed charged sheet against both the accused persons. 5. In order to prove the charges, the prosecution examined all together 16 witnesses. 6. Statement of witnesses were recorded by P.W.15. Exhibits were forwarded to Central Forensic Science Laboratory, Hyderabad(C.F.S.L.). The report received from C.F.S.L. is at Exhibit 76. On completion of investigation P.W.15 filed charged sheet against both the accused persons. 5. In order to prove the charges, the prosecution examined all together 16 witnesses. 6. The case of the accused was of denial and they further alleged that the injured and the deceased were the perpetrators who had assaulted them in their shop. The accused examined two witnesses namely Mr. Chandradeep Shastikar as D.W.1 and Dr. Mahindra Pal as D.W.2. 7. Trial Court convicted the accused no. 2 of the offence under section 324 of I.P.C., mainly on the basis of evidence of Sagun(P.W.1), Ravindra(P.W.10) and Dr. Sarfaraz (P.W.14). The accused no. 2 came to be convicted of the offence under section 302 of I.P.C. mainly on the basis of eye witness account rendered by Swapnaja Sagun Shastikar(P.W.5) corroborated by Shilpa Shastikar(P.W.9) and Roger Falcau(P.W.12). 8. The evidence on record reveals that there were two incidents which occurred on 11/05/2008, one of them being at 19.30 hours, alleged by the prosecution to have occurred at the “Trupti General Stores” belonging to P.W.1, where P.W.1 and P.W.10 are said to have been assaulted and the second at 19.40 hours, alleged to have occurred in the ancestral house, where the deceased Vasant is said to have been murdered. 9. Insofar as the first incident is concerned, Mr. S. Dessai, learned Senior Counsel on behalf of the accused, submitted that the evidence on record would establish a case contrary to that of the prosecution. He invited our attention to the panchanama of the scene of offence which is at Exhibit 40 and the evidence of P.W.6 who has proved the same. He contended that though the prosecution case is that the accused persons had assaulted P.W.1 and P.W.10, with chopper, at the shop namely “Trupti General Stores” belonging to P.W.1, however during the panchanama of the scene of offence, blood stains were found in the shop/kiosk bearing No. C-176/36 belonging to the accused and no panchanama was drawn at the shop by name “Trupti General Stores”. He further invited our attention to the evidence of P.W.15, the investigating officer, who has stated that his investigation revealed that the initial part of the offence took place in the kiosk of the accused and blood was found in that kiosk and he had collected blood sample from the kiosk. P.W.15 has admitted that the complainant had told him that the first incident of assault took place near the shop of the accused. The learned counsel for the accused also pointed out from the record that both the accused persons had sustained serious injuries as is proved by hurt certificates which are parts of Exhibit 78-colly. He pointed out that Smt. Mandakini, the wife of accused no. 1 had also sustained injuries. He therefore submitted that the evidence of P.W.1 and P.W.10 is not beyond suspicion. 10. The learned Public Prosecutor submitted that there is eye witness account given by P.W.1 and P.W.10 supported by medical evidence of P.W.14 and hence the conviction of the accused for Section 324 of I.P.C. Is proper. 11. The point for determination, with regard to the first incident, is whether the accused, along with his deceased father, in furtherance of their common intention, voluntarily caused hurt to Sagun( P.W.1) and grievous injuries to Ravindra(P.W.10). 12. P.W.1, Sagun, after narrating the family relations and describing the ancestral house, has deposed that there is dispute between the family members on account of the property rights since long, which is not yet settled. He has further deposed that on 11/05/2008 at about 7.30 p.m. he was at his general store by name “Trupti General Stores” which in front of their ancestral house when a jeep from Porvorim Police Station came and waited on the road in front of his shop and two policemen came and asked him about his brother Sanjay and about his father Vasant Sastikar. P.W.1 has stated that his uncle Ramnath Sastikar, who was accompanying the police took the policemen to their house and called out his father. It is further in the deposition of P.W.1 that his father came out in the gallery and the police told the father that the complaint has been lodged against him and Sanjay Sastikar and he should come to Porvorim Police Station on the next day. It is further in the deposition of P.W.1 that his father came out in the gallery and the police told the father that the complaint has been lodged against him and Sanjay Sastikar and he should come to Porvorim Police Station on the next day. Thereafter, the police went away by the police jeep whereas uncle Ramnath went to his separate house which is built by him behind the ancestral house. According to P.W.1, after the police jeep went away, accused no. 1 came to his shop and started abusing him and his family members and accused no. 2 started arguing with his brother Ravindra who was near the shop. He has further stated that accused no. 2 and Ravindra were both arguing with each other when accused no. 2 took out koita and assaulted Ravindra on left side of his head and when he went to stop accused no. 2, accused no. 2 assaulted him with the same koita on the left hand near the wrist and elbow. P.W.1 has gone on record to say that accused no. 2 told his father that is accused no.1 not to talk to these dogs and that he would cut them into pieces with koita. It is stated by P.W.1 that thereafter his other brother Sanjay came and took him and Ravindra by their esteem car to Goa Medical College, Bambolim. 13. In his cross-examination, P.W.1 has stated that there was no koita at his shop and that the accused no. 2 had brought the koita along with him. He has stated that the shop of the accused no. 1 is in front of his shop and about 30 metres away therefrom and it faces the road. A suggestion has been put up to P.W.1 that on 11/05/2008 during morning time, his brother Sanjay and the deceased(Vasant) had cut the banana saplings belonging to Ramnath due to which there was quarrel between Ramnath on one side and deceased and Sanjay on other side. Ramnath had filed complaint with Porvorim Police Station acting upon which the police had arrived at the spot. P.W.1 has answered that he does not know about the earlier incident, though it is true that police had came. Ramnath had filed complaint with Porvorim Police Station acting upon which the police had arrived at the spot. P.W.1 has answered that he does not know about the earlier incident, though it is true that police had came. He has denied the suggestion that the police inspected banana plantation which was cut and directed the deceased and Sanjay to report at the police station on the next day and that thereafter accused no.1 had peacefully gone to his shop. P.W.1 has denied the suggestion that the moment accused no.1 reached his shop, he, his brothers Ravindra, Sanjay and also the deceased father criminally trespassed into the shop of accused no.1 and hurled filthy abuses to the accused no.1 and thereafter assaulted accused no.1 and his son accused no. 2 who was inside the said shop at the relevant time. P.W.1 has denied the suggestion that thereafter the accused no.1 and 2 were defending themselves and due to the assault accused no.1 sustained serious and grievous injuries and there was a fracture and dislocation of right shoulder bone. P.W.1 has denied the suggestion that the accused nos. 1 and 2 were bleeding profusely and that even wife of the accused no.1 namely Mandakini who had shouted for help, was assaulted by the father of P.W.1, his brother and by him. P.W.1 has denied the suggestion that he had shown the first place of incident at the shop of the accused. 14. P.W.10 , Ravindra Sastikar has deposed that on 11/05/2008 at about 19.00 hours to 19.30 hours, police came to his house along with his paternal uncle Ramnath and inquired as to who were Sanjay and Vasant Sastikar. P.W.10 has stated that upon inquiries, the police told him that there was a complaint by Ramnath for cutting of the Banana saplings. P.W.10 has further stated that he called out his father Vasant and police made inquiries when his father told that he had not cut the Banana saplings. It is in the evidence of P.W.10 that Ramnath told the police that the entire property including the common house belongs to him and took the police to show the banana saplings. According to P.W.10 police came back and inquired with his father whether he had cut the said saplings who once again mentioned that he had not cut them. It is in the evidence of P.W.10 that Ramnath told the police that the entire property including the common house belongs to him and took the police to show the banana saplings. According to P.W.10 police came back and inquired with his father whether he had cut the said saplings who once again mentioned that he had not cut them. P.W.10 has then stated that police told Sanjay and his father to report at the Police Station on the next day and went away. 15. It is pertinent to note that the case of the accused, regarding the complaint filed by Ramnath since his Banana saplings were cut and that the police had arrived in relation to the said incident and had confirmed that the Banana saplings were cut and had made inquiries with the deceased and with Sanjay and had called them at the Police Station, was denied by P.W.1 in his cross-examination but has been stated by P.W.10 in his examination in chief. 16. P.W.10 has further stated that after the police went away he and his father went inside the house and that accused no.1 Manohar also came inside the house and gave abuses to him and to his father and he told his father not to respond and that he would lodge a complaint at Porvorim Police Station. P.W.10 has then stated that accused no. 1 went to his gada and he (P.W.10) went inside the house, picked up the keys of his vehicle and came on the road, when his elder brother Sagun said that he would accompany him to the Police Station. It is further stated by P.W.10 that when he was walking towards the vehicle in order to go to the Police Station, accused came running from his stall and assaulted him with koita on his left ear due to which he sustained bleeding injuries. P.W.10 has stated that as accused lifted the koita to assault him for the second time, he tried to avoid the impact by catching hold of the hand of the accused. P.W.10 has further gone on record to say that, in the meantime, Manohar, since deceased, assaulted him, with a knife, on his head and his forehead and Sagun on his left forearm due to which both of them sustained bleeding injuries. P.W.10 has further gone on record to say that, in the meantime, Manohar, since deceased, assaulted him, with a knife, on his head and his forehead and Sagun on his left forearm due to which both of them sustained bleeding injuries. According to P.W.10, people gathered at the spot and separated them from both the accused and Sanjay who had also sustained bleeding injuries came there and took him and Sagun in their esteem Car to Goa Medical College, Bambolim. 17. First of all, according to P.W.1 and P.W.10, the entire first incident had occurred at their shop. They do not say that anything happened inside the shop/kiosk of the accused. P.W.1 has not stated that people gathered at the spot and had separated him and P.W.10 from both the accused persons. He has not stated that P.W.10 was going to the police station, etc. P.W.1 has not stated that the accused no. 1 assaulted them with a knife. P.W.1 has not stated that Sanjay had also sustained injuries. P.W.10 has not explained as to how Sanjay had sustained injuries. Sanjay has not been examined. 18. There are various omissions brought on record in the cross-examination of P.W.10 via-a-vis his police statement, which are material and which amount to contradictions. For example, it is not recorded in the statement of P.W.10 that the accused lifted the koita to assault him the second time and he tried to avoid the impact by catching hold of his hand with the Koita in it. It is also not recorded in the police statement that the accused no.1 assaulted with the knife on his forehead and assaulted Sagun on his left forearm. P.W.10 has stated that he did not raise any alarm as people were available at that time. According to him there were ten persons at the spot. It is pertinent to note that not a single independent witness has been examined by the prosecution. A suggestion has been put to P.W.10 that Manohar had gone to his shop immediately after the police left their house on inquiries and with him, his brothers and father went to shop of the accused and abused the accused and assaulted Manohar with fist, kicks and sharp weapon and accused no.1 sustained dislocation of the right shoulder and that the accused has sustained injuries in the shop itself. 19. P.W.1 was examined by Dr. 19. P.W.1 was examined by Dr. Sayed Sarfaraj Ahmed (P.W.14) on 11/05/2008 at 20.30 hours and he found only two simple injuries namely lacerations one over the left arm and dorsal aspect of the wrist joint and the other over the left arm. P.W.1 was discharged on the same day after necessary treatment. Exhibit 69 is the Hurt Certificate. P.W.14 had also examined Ravindra (P.W.10) on the same night at about 21.25 hours and had found two simple injuries that is lacerations one over the left side of the face and other over the frontal region. The Hurt Certificate is at Exhibit 70. 20. P.W.6, Krishna Kashinath Pednekar had acted as one of the panch witnesses in the panchanama of the scene of offence which is at Exhibit 40. He has deposed that on 12/05/2008 Sagun Sastikar showed a shop covered with blue colour plastic with cemented sheets and bearing no. C-176/36 and there were blood stains in the Kiosk which were collected by police. In the Panchanama Exhibit 40, also it is mentioned that dried blood stains were seen on the wooden table and also on the muddy floor inside the Kiosk having no. C-176/36. A paragon chappal with blood stains and a torn shirt with blood stains was found at the entrance of that shop. This torn and blood stained shirt belongs to the accused no. 2. Neither the Panchanama Exhibit 40 nor the evidence of P.W.6 reveals that anything incriminating was noticed near the shop of “Trupti General Stores” of P.W.1. 21. P.W.15, Devendra Gad , Police Inspector, who conducted the said Panchanama of the scene of offence has stated in his cross-examination that his investigation revealed that the initial part of the offence took place in the kiosk of the accused and blood was found in that Kiosk and he had collected blood sample from that kiosk. 22. P.W.15 has admitted that the accused persons and Mandakini were having injuries on their body at the time of their production but he has not relied upon the Hurt Certificates issued by the doctor at Azilo Hospital, Mapusa so also upon the letter referring them to Azilo Hospital. His explanation to the above is that there was no complaint at the instance of the accused person. His explanation to the above is that there was no complaint at the instance of the accused person. P.W.15 has stated that he made inquiries with the accused as to how they had sustained injuries and they disclosed that it was on account of scuffle. The Hurt Certificates pertaining to both the accused persons and Mandakini have been produced in the cross-examination of P.W.15 and they are at Exhibit 78-colly. It is seen that the accused no. 1 Manohar had suffered five injuries out of which four were contused lacerated wounds and one was abrasion and these injuries were on the parietal region, temporal area, eyebrow and forearm. X-rays of skull and shoulder were requisitioned and opinion was reserved pending the X-ray reports. Accused no. 2, Shailesh had also sustained six injuries out of which five were contused lacerated wounds and one was abrasion and they were on the lateral aspects of the left eyebrow, left index finger, left middle finger, left ring finger, left little finger and on the hip. X-rays of Skull, leg, and shoulder were requisitioned and opinion was reserved pending the X-ray reports. Smt. Mandakini, wife of the accused no. 1 had sustained swelling and abrasion on right forearm and right arm and on her face also. X-rays of forearm and shoulder were requisitioned and the opinion was reserved pending the x-ray reports. According to the accused persons, the accused no.1 had sustained fracture and dislocation of shoulder. However the prosecution has not produced the final medical certificate in respect of the accused persons and in respect of Mandakini. The learned Trial Court has observed that the injuries sustained by the accused persons and Mandakini are definitely not serious injuries. In view of what has been discussed above, it is difficult to believe that the said injuries were not serious. The incident narrated by P.W.1 and P.W.10 does not reveal participation of Smt. Mandakini. According to the Investigating Officer, his investigation revealed that the initial part of the offence took place in the kiosk of the accused. But neither P.W.1 nor P.W.10 has stated about anything having taken place in the kiosk of the accused. 23. Scanning the materials on record, It can only be said that a scuffle had taken place between the parties in the shop/kiosk of the accused, in which both parties had sustained injuries. But neither P.W.1 nor P.W.10 has stated about anything having taken place in the kiosk of the accused. 23. Scanning the materials on record, It can only be said that a scuffle had taken place between the parties in the shop/kiosk of the accused, in which both parties had sustained injuries. As has been rightly argued by the learned Senior counsel for the accused, the evidence on record establishes a case contrary to that of the prosecution, insofar as the first incident is concerned. 24. In view of the above, in our considered view, the prosecution has failed to prove beyond reasonable doubt that the accused persons had voluntarily caused hurt to P.W.1 and grievous hurt to P.W.10. The conviction of the accused for the offence punishable under Section 324 of I.P.C. and consequent sentence imposed upon him is not justified and not sustainable. The accused is entitled for acquittal in respect of offence punishable under Section 324 of I.P.C. 25. With regard to the second incident, the points which arise for determination are as under:- (I) Whether the death of Vasant Sastikar is proved to be homicidal? (ii) Whether the prosecution has proved beyond reasonable doubt that the accused persons caused the death of Vasant Sastikar? (iii) Whether the act of the accused in causing death of Vasant Sastikar amounts to murder or culpable homicide not amounting to murder? 26. Insofar as the first question is concerned, homicidal death of Vasant is not seriously disputed. P.W.3, Sushant Mandrekar has acted as one of the panch witnesses to the Inquest Panchanama in respect of the deceased and he noticed injuries on the back side of the head, injury to the left eye, to the upper lip and also to the left hand shoulder of the deceased. The Inquest Panchanama is at Exhibit 32. No doubt, P.W.3 was an employee working in the fabrication unit of Sanjay sastikar, brother of P.W.1. However, there is nothing in his cross-examination which would render him unreliable. 27. P.W.7, Dr. E. J. Rodrigues conducted postmortem examination on the dead body of the deceased on 12/05/2008. On external examination, P.W.7 noticed following injuries. 1) Irregular laceration of 6 x 3 cms on right side parietal eminence, scalp region with depressed comminuted fracture, skull bone deep, fresh with bleeding from the wound. 27. P.W.7, Dr. E. J. Rodrigues conducted postmortem examination on the dead body of the deceased on 12/05/2008. On external examination, P.W.7 noticed following injuries. 1) Irregular laceration of 6 x 3 cms on right side parietal eminence, scalp region with depressed comminuted fracture, skull bone deep, fresh with bleeding from the wound. 2) superficial abrasion of 0.5x 0.5 cms at muco cutaneous junction of the left side upper lip, 3 cms medial to the left angle of the mouth, fresh. 3) Superficial laceration of 1.8 x 0.5 cms just above the outer end of the right eyebrow with surrounding abraded margins. 4) superficial laceration of 2 x 0.5 cms, 3 cms above outer end of the left eyebrow with surrounding abraded margins. 5) abrasion of 6 x 1.5 cms on middle third front of right arm, fresh. 6) abrasion, fresh, 2 x .5 cms on the outer aspect of the left elbow joint. 7) abrasion, fresh, 3 x 1.5 cms on the top of the left shoulder. 8) abrasion, fresh, 1 x 0.5 cms on outer aspect of left knee joint ; and 9) abrasion, fresh, 1.5 x 1 cm on upper third outer aspect of left leg. 28. On internal examination, P.W.7 noticed that there was extravasation of blood present under injuries no. 1, 3 and 4 and there was a depressed comminuted fracture of the right parietal bone of 5 x 3 cms with another depressed comminuted fracture of 4 x 3 cms in the right parieto temporal bone, in communication with parietal bone, depressed fracture and dense two fissure fractures extending towards right temporal bone. There was extravasation of blood in the right temporalis muscle underneath the bone. There was contusion of brain in the right parieto temporal lobe. Subarachnoid hemorrhage was present all over the brain and cerebellum. Dura was lacerated at fracture fragment side in the right parietal bone region. Brain was oedematous. 29. P.W.7 has opined that the death of Vasant was due to head injury vide injury no.1 consequent to blunt force impact by object which was necessarily fatal and fresh at the time of death. The autopsy report is a part of Exhibit 44-colly. 30. No suggestion has been put to P.W.7 that the death of the deceased was not homicidal or that it was accidental or suicidal. The autopsy report is a part of Exhibit 44-colly. 30. No suggestion has been put to P.W.7 that the death of the deceased was not homicidal or that it was accidental or suicidal. The nature of injuries sustained by the deceased is sufficient to establish that his death is homicidal. Therefore the first point is answered in the affirmative. 31. Mr. Dessai, learned Senior Counsel, on behalf of the accused, towards convincing this Court that the conviction and sentence of the accused for murder is not justified, has raised the following points:- (i) The falsity of the prosecution case with regard to the first incident creates reasonable doubt about the truth of the second incident. (ii) The evidence on record shows that the incident had occurred in a cluster of several houses. However none of the neighbours has been examined as a witness. (iii) According to P.W.5, accused no. 1 assaulted Vasant with a soda bottle on his head. However there is no injury with soda bottle sustained by deceased. No soda bottle or broken pieces thereof have been attached. (iv) Koita was allegedly attached from inside the ancestral house. (v) The incident with koita had occurred at the shop. Then how could the koita to be found in ancestral house. (vi) Sanjay Sastikar, a very material witness, has not been examined though his wife Shilpa has been examined as P.W. 9. (vii) P.W.1 and P.W.10 were discharged from the Azilo Hospital, Mapusa on the same day but in order to create a case they got admitted in the private hospital namely Sankalp Hospital. (viii) The evidence of P.W.5 who is interested witness is not beyond suspicion and if she is not believed the entire case falls flat. (ix) According to P.W.5 the door which was closed from inside was opened with force by means of danda. However no traces of force on that door were found during the panchnama of the scene of offence. (x) P.W.5 has stated that danda was thrown in the house itself. However no danda was found in the house but was found in the shop/ kiosk of the accused. (xi) Though P.W.1 says that the koita was left in the house, the koita was found behind the kiosk of the accused. (xii) Blood group of the blood found on samai is not detected and no finger prints from samai were collected. However no danda was found in the house but was found in the shop/ kiosk of the accused. (xi) Though P.W.1 says that the koita was left in the house, the koita was found behind the kiosk of the accused. (xii) Blood group of the blood found on samai is not detected and no finger prints from samai were collected. (xiii) P.S.I. Bavkar had informed about the incident at Kitla on 11/05/2008 at 20.30 hours itself and therefore this information becomes F.I.R. and the complaint lodged by P.W.1 cannot be taken as F.I.R. (xiv) In the alternative, even if, the incident is believed the case cannot at all come under the definition of murder and at the most it can fall under Section 304 (II) of I.P.C. 32. Mr. Rivonkar, learned Public Prosecutor, submitted that if some offence is disclosed, a Police Officer can make preliminary inquiries and moment a cognizable offence is revealed, the offence is to be registered. He argued that the entire case regarding second incident is based on the evidence of P.W.5 and that P.W.5 is wholly reliable witness. The learned Public Prosecutor further contended that there is corroboration to the evidence of P.W.5 from P.W.9 and P.W.12. He also pointed out that human blood was detected on the samai but since the blood was disintegrated its group could not be traced. According to learned Public Prosecutor, the evidence of P.W.7 sufficiently proves that the injury caused to the head of the deceased was fatal and sufficient to cause death. The learned Public Prosecutor contended that there was previous enmity on account of property dispute and that the first incident which occurred at the shop gave rise to the second incident which occurred in the ancestral house and the nature of the injury caused sufficiently proves that the intention was to cause death. The learned Public Prosecutor, therefore, submitted that the conviction and sentence imposed upon by the Trial Court is just and proper and no interference is called for. 33. We have gone through the entire material on record, with the assistance of the learned counsel for the parties. 34. P.W.5, Swapnaja Sastikar is the wife of P.W.1. The learned Public Prosecutor, therefore, submitted that the conviction and sentence imposed upon by the Trial Court is just and proper and no interference is called for. 33. We have gone through the entire material on record, with the assistance of the learned counsel for the parties. 34. P.W.5, Swapnaja Sastikar is the wife of P.W.1. She deposed that on 11/05/2008 she was in the room which is behind their shop by name “Trupti General Shop” and that at about 7.00 p.m., one police jeep came and police had come along with Ramnath who went to the ancestral house. She further deposed that after half an hour, Mrs. Shilpa, wife of Sanjay came and she asked for a cloth saying that Ravindra is bleeding and ran away. She therefore took a cloth and went to the road by the side of their shop when she saw Vasant Sastikar going to sit on the bench which is in front of the shop. She stated that her father in law Vasant told that Ravindra has been taken to Goa Medical College along with Sagun and others. According to P.W.5, she asked Vasant as to what had happened and he told her that Shailu (Accused no. 2) assaulted Ravindra with koita on his head. She stated that at that time she turned back and saw both the accused at their shop and the accused no. 2 started coming towards their shop by running with danda in his hand to assault Vasant. She deposed that she shouted at Vasant saying “Ghara Dau, Dau”, due to which Vasant ran to the ancestral house and closed the door. She stated that she ran behind Vasant but had to wait near the door as the door was closed and at that time both the accused persons started pushing the door inside, with the help of a danda. P.W.5, then, proceeded to state that in that manner, the accused persons forcibly opened the door and went inside the house and the accused no.1 assaulted her father in law with soda bottle on his head and thereafter Vasant was put flat on the ground in the hall by both accused and they went to assault Vasant. She stated that accused no.1 caught hold of the hand of her father in law whereas accused no. She stated that accused no.1 caught hold of the hand of her father in law whereas accused no. 2 caught his neck and when she went to the rescue of her father in law, Shailesh caught hold of her nighty near the neck due to which she went by the side of the door. P.W.5 stated that at that time accused no. 2 (Shailesh) picked up a Samai of brass which was in the God's room situated in the hall and with that Samai he assaulted her father in law on the right hand side of his head due to which Vasant fell down. Accused no. 1 started kicking on the stomach of Vasant. According to P.W.5, wife of deceased accused no.1 by name Mandakini also kicked Vasant on his legs and the deceased accused no.1 was encouraging accused no. 2 by saying “mar mar”. P.W.5 stated that thereafter both the accused ran on the road and the danda and Samai were thrown in the house. She stated that she called Shilpa who came and thereafter Vasant was taken to Goa Medical College , Bambolim in a maruti van belonging to someone and Shilpa, Sameer and herself accompanied Vasant and at Bambolim, Doctor told them that Vasant has been brought dead. P.W.5 stated that the said brass lamp(samai) belongs to her since it was given to her by her mother during her marriage with sagun. She identified the brass lamp showed to her in the Court. Her name is engraved on the base of the said lamp as Suvarna Pednekar, which is her maiden name. 35. In her cross-examination, P.W.5 stated that their house is in residential locality where people reside in many houses. According to her, she did not know as to why the police had come to their house and even subsequently she did not ask anyone as to why the police had come. She stated that when Shilpa asked for cloth she did not question Shilpa as to what had happened and why she required the cloth. P.W.5 has been confronted with the police statement where it is not recorded that she had turned back and had seen both the accused at their shop. She also been confronted with her police statement where it is not recorded that accused no. 2 started coming to their shop by running with a danda to assault Vasant. P.W.5 has been confronted with the police statement where it is not recorded that she had turned back and had seen both the accused at their shop. She also been confronted with her police statement where it is not recorded that accused no. 2 started coming to their shop by running with a danda to assault Vasant. She stated that she could not think of telling Vasant to run into the room instead of running to ancestral house at the relevant time though the room is close by. She has been confronted with the police statement where it is not recorded that both the accused started pushing the door inside with the help of danda. She further stated that after the said assault, the soda bottle broke and the pieces of the soda bottle fell on the ground and they did not collect those pieces. She has been confronted with her police statement where she has not stated that Vasant was put flat on the ground by both the accused. She stated that she did not shout for help of the neighbours nor did she call any one. She further stated that after her father in law fell down she did not go out of the house to call neighbours for help. She has been confronted with the police statement where it is recorded that she shouted saying “Nana you run away” and then Nana ran in the ancestral house but it is not recorded that she told Nana to run into ancestral house. 36. P.W.9, Shilpa Sastikar deposed that on 11/05/2008 at around 19.00 hours she was in her room along with her minor children when she heard loud noise coming from the road side due to which she went in the direction of the noise and saw her brother in law Ravindra on the road catching his left ear which was bleeding. She has stated that her husband Sanjay told her to bring cloth and therefore she went to room of Swapnaja, her sister in law and asked her to give a piece of cloth. According to P.W.9, Swapnaja asked her as to why she required the cloth and she told that Ravindra was having bleeding injuries on his ear. She has stated that her husband Sanjay told her to bring cloth and therefore she went to room of Swapnaja, her sister in law and asked her to give a piece of cloth. According to P.W.9, Swapnaja asked her as to why she required the cloth and she told that Ravindra was having bleeding injuries on his ear. P.W.9 further stated that by the time she reached road with a piece of cloth she noticed that her brother in law was no longer available and was taken to the hospital by her husband Sanjay, brother in law Sagun, mother in law Vasuda and sister in law Priya. She further stated that she came back to her room and saw her father in law sitting on the pavement out side his shop. She further stated that after about ten minutes she again heard shouts in the voice of Swapnaja alias Suvarna which sounded like “ghara vos ghara vos” to Nana that is her father in law. P.W.9 deposed that she opened the door and saw Shailesh (accused no. 2) running after her father in law with a wooden danda and Manohar (accused no.1) also running behind her father in law with soda bottle in his hand. She further stated that her father in law ran towards the old house and tried to close the door but Shailesh (accused no. 2) pushed the door with a danda and opened it and both the accused entered the house and assaulted her father in law and also Suvarna. She stated that she did not go inside the old house as she had baby in her hands but she heard the voice of Suvarna saying not to assault father in law. P.W.9 stated that both the accused came out of the house and after reaching near the steps of the house, accused no.1 Manohar said “amkan modun ghal mhon sangtalom ami tukach modun ghatlo, antam pol tol” and went towards the road. P.W.9 has stated that she did not see danda and soda bottle in the hands of the accused persons while they were going out of the old house. She then went to hall in the common house and saw her father in law lying on the ground and also her sister in law Swapnaja. P.W.9 has stated that she did not see danda and soda bottle in the hands of the accused persons while they were going out of the old house. She then went to hall in the common house and saw her father in law lying on the ground and also her sister in law Swapnaja. According to P.W.9, her father in law was lying motionless on the floor and there was a pool of blood and bleeding from the head of her father in law. She also stated that she noticed glass pieces lying in the room and lamp (samai) near her father in law and Swapnaja told her that Shailesh had assaulted father in law on his head with the brass lamp. Subsequently, Vasant was taken to the hospital. P.W.9 has identified the brass lamp(samai). 37. In her cross-examination, P.W.9 admitted that her statement was recorded by police on 27/05/2008 and that she was available in Goa between 11/5/2008 till 27/05/2008. She stated that she did not ask Ravindra as to how he had sustained injuries. She has admitted that she did not tell the police that she heard Suvarna saying “Nana tu Gharan Voch”. P.W.9 has been confronted with her police statement where it is not recorded that she saw Swapnaja also lying on the ground. She has also been confronted with her police statement where it is not recorded that she had reported the matter to her husband. 38. P.W.12, Roger Falcau is a property broker. He deposed that on 08/05/2008 he was told by one of his friends that Sanjay Sastikar from Salvador do Mundo is having a plot for sale and therefore he contacted Sanjay on 10/05/2008 in order to make inquiries about the plot and Sanjay told him to meet him on 11/05/2008 to inspect the plot. According to P.W.12, he therefore went to the house of Sanjay at about 18.30 hours on 11/05/2008, which house is located near a tea stall. He stated that he went for a cup of tea to the stall belonging to Shailesh that is accused in the dock. P.W.12 stated that on coming out of the tea stall in order to meet Sanjay, he noticed a black colour maruti esteem car which came out from the house of Sanjay and proceeded towards Panaji direction. There were three persons in that car. P.W.12 stated that on coming out of the tea stall in order to meet Sanjay, he noticed a black colour maruti esteem car which came out from the house of Sanjay and proceeded towards Panaji direction. There were three persons in that car. He stated that he made inquiries with some children on the road and learnt that Sanjay had left in the said Esteem car. P.W.12 stated that in the meantime the accused in the dock and one elderly person rushed towards the house of Sanjay which was about 30 to 40 metres away from the tea stall and thereafter he heard loud shouts of the women folk from inside the house. According to P.W.12, he did not wait at the spot and came back to his house at Taleigao, on his motorcycle. 39. In his cross-examination, P.W.12 stated that his statement was recorded by Porvorim Police on 27/05/2008. He has admitted that he did not know the house of Sanjay Sastikar prior to the day of incident nor did he know Sanjay. He also stated that he did not know the phone number of Sanjay prior to that day. He further stated he had not gone to the tea stall of the accused on any earlier occasion and was not aware as to whom it belonged and who was running it prior to that date. 40. Krishna (P.W.6), the pancha witness, deposed that all of them had entered the house of Sagun and on opening the main door they noticed blood stains on the floor near that door and the blood was scrapped, collected in polythene bag and duly packed and sealed. He stated that police also collected the blood with soil in front of the house of Sagun and packed and sealed the same. Plain mud that is control soil was also collected, packed and sealed in his presence. P.W.6 stated that on entering the hall he saw a small room/place reserved for deities made of Kadappa on a raised platform and P.W.5 Swapnaja showed a traditional lamp (Samai) and there were blood stains on that lamp and a name inscribed on the said lamp as Suvarna Pednekar. P.W.6 stated that the said brass lamp (Samai) was put in polythene bag, packed and sealed. He also stated that a police photographer took photographs in his presence and that those photographs are at Exhibit 29-Colly. P.W.6 stated that the said brass lamp (Samai) was put in polythene bag, packed and sealed. He also stated that a police photographer took photographs in his presence and that those photographs are at Exhibit 29-Colly. He identified his signature on the said panchanama, which is at Exhibit 40 and he also identified all the articles which were shown to him as the same which were attached in his presence during the said panchanama. 41. In his cross-examination, P.W.6 stated that Sagun is his brother in law while Swapnaja is his sister. He has further stated that Nitesh (second panch witness) is also related to Sagun. Though it is true that P.W.6 is a close relative of P.W.5, however a minute scrutiny of his evidence reveals that he is a reliable witness. According to us, P.W.6 has duly proved the panchanama of scene of offence, which is at Exhibit 40. 42. The examination report of C.F.S.L. which is at Exhibit 76 reveals that human blood was detected on the said yellow colour metal lamp (Samai). Human blood was also detected on the mud, on the pair of rubber slipper, the long sleeved shirt, the right leg foot chappal, the chopper (koita), etc. which articles were attached during the panchanama of scene of offence. 43. Sagun(P.W.1), deposed that on the way while going to GMC, Bambolim, his brother Sanjay received phone call on his mobile from their residence informing that both the accused persons had assaulted their father and that father is lying unconscious and they should take him to the hospital. P.W.1 stated that Sanjay informed that since Ravindra was serious, he would take him and P.W.1 to the hospital and then come back to the residence. According to P.W.1, when they reached GMC, Bambolim, they received phone on the mobile of Sanjay informing that Sameer has already left with father to come to GMC, Bambolim and that Swapnaja is accompanying them. P.W.1 stated that after some time, his father was brought to the hospital and the Doctor on duty checked him and declared that his father was brought dead. P.W.1 stated that he asked his wife, Swapnaja as to how this happened upon which Swapnaja told him that the accused no. 2 hit samai on his head and this happened ten minutes after they had left for the hospital. P.W.1 then lodged the complaint, which is at Exhibit 22. P.W.1 stated that he asked his wife, Swapnaja as to how this happened upon which Swapnaja told him that the accused no. 2 hit samai on his head and this happened ten minutes after they had left for the hospital. P.W.1 then lodged the complaint, which is at Exhibit 22. 44. Ravindra(P.W.10), has corroborated P.W. 1, in this regard. 45. SameerSastikar ( P.W.11), deposed that on 11/5/2008 he had gone to Calangute at 17.15 hours along with his wife for a joy trip and at around 19.30 hours, he received a phone call from his sister-in-law Shilpa(P.W.9) who conveyed that there was a fight at home and that Manohar and Shailesh had assaulted his father and that father had sustained injuries to his head and there was no movement at his instance. P.W.11 further stated that Shilpa(P.W.9) further told him that Sagun and Ravindra were also injured and not available in the house being taken to the doctor by Sanjay. P.W.11 deposed that Shilpa further told him that his father had to be taken to the hospital. P.W.11, accordingly made arrangement of a vehicle on hire to shift his father to the hospital and reached home before 20.00 hours. Thereafter, Swapnaja, Shilpa and some neighbours lifted his father in that vehicle to take him to the hospital. According to P.W.11, the doctor at the casualty told him that his father was brought dead. 46. The testimony of Swapnaja (P.W.5) is wholly reliable, in our considered opinion, for various reasons, as follows: a) Swapnaja (PW5) was the most natural witness who was available at the time of incident of fatal assault on her father in law since her husband Sagun (PW1), her brother in law Ravindra (PW10) were taken by her other brother in law Sanjay to the hospital. Even otherwise her presence is not denied. b) No doubt, no soda bottle or pieces of soda bottle were attached from the house. However according to P.W.5 the accused no.1 had assaulted her father in law with soda bottle on his head and the postmortem examination report reveals that the deceased had sustained injuries on the head. c) There is corroboration from Shilpa (P.W.9) who had heard voice of Swapnaja (P.W.5) while she was inside the house, saying not to assault her father in law. c) There is corroboration from Shilpa (P.W.9) who had heard voice of Swapnaja (P.W.5) while she was inside the house, saying not to assault her father in law. P.W.9 had seen the accused persons going out of the ancestral house saying “amkan modun ghal mhon sangtalom ami tukach modun ghatlo, antam pol tol” d) Soon after the accused persons going out of the ancestral house, Shilpa (P.W.9) had entered the house and had seen her father in law lying motionless on the floor and there was a pool of blood and bleeding from the head and she had seen glass pieces lying in the room and lamp (samai) near him. e) Shilpa (P.W.9) who had entered the hall soon after the incident was told immediately by Swapnaja that Accused No.1 Shailesh had assaulted her father in law with brass lamp (Samai). f) Shilpa (P.W.9) immediately informed her husband Sanjay telephonically about the incident of assault who told her that he would go with Ravindra and then would come back to the residence. g) Shilpa (P.W.9) had immediately contacted Sameer (P.W.11) who then made arrangement of a vehicle and then Vasant was shifted to the hospital. h) Human blood was detected on the said brass lamp (Samai); i) Injury no.1 sustained by the deceased was in the form of irregular laceration and according to P.W.7 Dr. Rodrigues such injury could be caused by the Samai(M.O. 10). j) Sagun (P.W.1) had lodged the complaint (Exhibit-22) on the very night of incident. Offence was registered at 23.50 hours. In this complaint there is mention that in the hospital, wife of Sagun informed that his father Vasant was assaulted by Shailesh Sastikar (Accused no.2) at residence at 19.40 hours with Samai. k) There was no delay in recording the statement of P.W. 5, by the Investigating officer. 47. The sequence of events which emerges from the deposition of above witnesses reveals that there was no chance for manipulation of facts and creation of a false story and it does not leave any doubt about the truth of the incident narrated by them. Merely because they are all related witnesses, their testimonies cannot be discarded, by calling them unreliable. There is nothing on record to establish that any independent witness was present at the time when the second incident in the ancestral house occurred. 48. Merely because they are all related witnesses, their testimonies cannot be discarded, by calling them unreliable. There is nothing on record to establish that any independent witness was present at the time when the second incident in the ancestral house occurred. 48. Chandradeep Shastikar (D.W.1) is not an eye witness to any of the incidents and his evidence even otherwise does not inspire confidence. 49. Dr. Manindra Pal (D.W.2) was examined to disprove the findings of Dr. Rodrigues (P.W.7). However Dr. Pal is a Gynaecologist and not a Forensic Surgeon. Besides that, he did not have an unblemished career. He cannot be held to be an expert in forensic science. 50. In our view, the prosecution has sufficiently proved that the accused caused the death of Vasant Sastikar. Point (ii) mentioned in paragraph 25 above is answered in the affirmative. 51. The finding of the Trial Court that the prosecution has proved that Manohar, since deceased, with the accused had assaulted Sagun PW 1 and Ravindra PW 10 causing grievous injuries to him and thereafter, had assaulted Vasant on his head with the knowledge and intention that the injuries would result in his death, does not appeal to our mind. The evidence on record is not sufficient to prove that the accused had intention to kill the deceased who was his paternal uncle and 65 years old. It is only the injury no.1 which was fatal, that was caused by a single blow. In our considered view, therefore, the Trial Court erred in holding the accused guilty for offence under Section 302 of I.P.C. There was a scuffle between the prosecution witnesses and the accused persons soon prior to the second incident in which the accused persons had received more injuries and were infuriated and in the heat of that first incident, the accused persons had followed the deceased into the ancestral house, where also there was a scuffle. There is no evidence that the assault with brass lamp was pre-meditated and calculated. The accused had not carried with him the brass lamp with intention to assault the deceased with it. The brass lamp belonging to P.W. 5 was in the hall and was picked up by the accused no.2 during the scuffle. In that scuffle, the accused no. 2 hit the brass lamp on the head of the deceased. The accused had not carried with him the brass lamp with intention to assault the deceased with it. The brass lamp belonging to P.W. 5 was in the hall and was picked up by the accused no.2 during the scuffle. In that scuffle, the accused no. 2 hit the brass lamp on the head of the deceased. We are of the view that Section 304(II) of I.P.C. is attracted to the present case. Point (iii) mentioned in paragraph 25 above is answered accordingly. 52. Heard learned counsel for parties on the point of sentence. It was contended by the learned Senior Counsel for the accused that the unfortunate incident was amongst close relatives and that the accused no.1 has died and accused no.2 who is in jail is young and has wife and children. He argued that the accused is in custody since 12/05/2008 and more than four years have passed. He therefore submitted that the period already under gone by the accused no. 2 and appropriate fine should be taken as sufficient punishment for him. We accept the above contention. In our view, the period already undergone by the accused no.2 in custody and fine of Rs. 25,000/-should be adequate punishment. Fine amount be deposited in the Trial Court. 53. Considering the facts and circumstances of this case, we pass the following order; (a) Appeal is partly allowed. (b) The conviction and sentence, of the accused for the offence punishable under Section 324 of I.P.C., is quashed and set aside. (c) The conviction and sentence, of the accused for the offence punishable under Section 302 of I.P.C., is also quashed and set aside. (d) The accused is held guilty and convicted for the offence punishable under Section 304 (II) of I.P.C. and is sentenced to under go imprisonment for the period already undergone and to pay fine of Rs. 25,000/-, in default, to under go simple imprisonment for a period of six months. (e) If the fine amount is deposited an amount of Rs. 15,000/-shall be paid by the Trial Court as compensation to the heirs of the deceased Vasant in terms of Section 357 (3) of Criminal Procedure Code. (f) The period during which the accused has been in custody shall be set off against substantive sentence in terms of Section 428 of Criminal Procedure Code. 15,000/-shall be paid by the Trial Court as compensation to the heirs of the deceased Vasant in terms of Section 357 (3) of Criminal Procedure Code. (f) The period during which the accused has been in custody shall be set off against substantive sentence in terms of Section 428 of Criminal Procedure Code. (g) Muddemal property shall be dealt with in the manner as ordered by the Trail Court. (h) Appeal disposed of accordingly.