Judgment :- U.V. Bakre, J. This appeal is filed by the accused, in Sessions Case No. 14 of 2008, who has been convicted and sentenced for the offence punishable under Section 302 of Indian Penal Code (I.P.C.) for life imprisonment and to pay fine of Rs. 10,000/- in default to under go rigorous imprisonment for six months. 2. The accused, the deceased Rehman and one Mani had no permanent residence in Goa and they used to earn their livelihood by doing labour work. They used to sleep sometimes at Calangute beach and sometimes behind “D'Cunha Bar” near Alcon Hotel, Maddawado, Calangute. On 14/3/2008, prior to 15.45 hours, the deceased was found lying in injured condition on a cemented water tank behind the said D'Cunha Bar and he was taken to P.H.C. Candolim and from there to Goa Medical College Hospital, where he was admitted. The deceased expired on 07/04/2008. 3. Case of the prosecution, in short, is that on 14/03/2008 prior to 15.45 hours behind D'Cunha Bar, Maddavaddo, Calangute, Bardez-Goa, the accused committed murder of said Mr. Rehman by assaulting him with cemented stone and causing grievous injuries on his head as a result of which he expired while undergoing treatment in GMC Bambolim Goa on 07/04/2008. 4. In order to prove the charge against the accused, the prosecution examined altogether 14 witnesses. PW-1, Shri Sujukumar Sukumaran, acted as one of the Panch Witnesses to the Inquest Panchanama (Exh. 11) conducted between 15.45 hours to 16.45 hours, on 07/04/2008, on the dead body of the deceased. PW-2, Mr. Edmond D'Cunha is the owner of the said D'Cunha Bar. PW-3, Dr. Sanjay Korgaonkar conducted blood group examination of the blood of the accused. The certificate issued by PW-2 is at Exhibit 20. PW-4, Dr. Indrani Pal examined the blood of the deceased for the purpose of determination of the blood group. The certificate issued by her is at Exhibit 23. PW-5, Dr. C. N. Fernandes examined the deceased at GMC, Bambolim, on 14/03/2008 at 7.00 p.m. and issued a certificate which is at Exhibit 25. PW-6, Dr. Andre Fernandes conducted the postmortem examination on the dead body of the deceased, on 07/04/2008. The Memorandum of Autopsy is at Exhibit 30. PW-7, Mr. Duglas D'Souza acted as one of the Pancha witnesses for the Panchanama of the scene of offence and the sketch, which are at Exhibit 42 (Colly). PW-6, Dr. Andre Fernandes conducted the postmortem examination on the dead body of the deceased, on 07/04/2008. The Memorandum of Autopsy is at Exhibit 30. PW-7, Mr. Duglas D'Souza acted as one of the Pancha witnesses for the Panchanama of the scene of offence and the sketch, which are at Exhibit 42 (Colly). PW-8, Shri D. N. Shridhar Shetty acted as one of the Panch witnesses for the Panchanama (Exhibit 46) of the arrest of the accused which was drawn on 15/08/2008 during which his clothes were attached. PW-9, Shri Lalu Ibrahim acted as one of the Panch witnesses for the Panchanama of attachment of the clothes of the deceased, which Panchanama is at Exhibit 64. PW-10, Shri Narayan Chimulkar is a Police Sub-Inspector, who was then attached to Calangute Police Station. He conducted part of the investigation. PW-11, Mr. S. Sathyan is a Senior Scientific Officer working at CFSL Hyderabad. PW12, Shri Rahul T. Parab is a Police Sub-Inspector who was then attached to Calangute Police Station and he lodged complaint on behalf of the State, which complaint is at Exhibit 87 and he also conducted part of the investigation. PW-13, Shri Tushar Vernekar is the Police Inspector who was in-charge of Calangute Police Station at the relevant time and he completed the investigation and filed the charge sheet against the accused. Lastly, PW-14, Dr. Deelip Amonkar had examined the deceased and had certified that he was not fit to make any statement. 5. The case of the accused was of denial simplicitor. He did not examine any witness in his defence. 6. Upon consideration of the entire evidence on record, the learned Additional Sessions Judge, Fast track Court, Panaji (Trial Judge) came to the conclusion that the prosecution has proved the guilt of the accused, for the offence punishable under Section 302 of the I.P.C., beyond reasonable doubt, Hence, the sentence as stated earlier has been imposed, vide the judgment and order dated 22/02/2010, which is impugned in this appeal. 7. Ms. Prema Matkar, the learned counsel for the accused, has argued that the evidence of PW2 cannot prove the theory of “last seen together” as admittedly besides the accused and the deceased, there was one more person by name Mani along with them. She further contended that the panchanama of attachment of blood stained clothes of the accused has not been proved beyond reasonable doubt. She further contended that the panchanama of attachment of blood stained clothes of the accused has not been proved beyond reasonable doubt. According to her, the incident occurred on 14/03/2008 whereas the accused was arrested on 15/03/2008 and there was no reason for the accused to move around with blood stained clothes on his body. She pointed out that the second Panch witness for the said Panchanama of the attachment of the clothes of the accused has not been examined. The learned counsel for the accused argued that it is duly proved that the accused had sustained various injuries and therefore according to her even if blood is detected on his clothes, he cannot be held guilty. She pointed out that the deceased was found lying on the top of the water tank which was full of blood and therefore it is surprising to note that no blood was detected on the clothes of the deceased. She vehemently contended that the non-examination of Mani and Sadik is fatal to the case of the prosecution. She further argued that in the absence of motive, the accused cannot be held guilty of any offence. In the alternative, She submitted that the case is not of murder, but of culpable homicide not amounting to murder. Ms. Matkar has relied upon the following citations: (1).-“Anil Kumar Singh Vs State of Bihar”, [ (2003) 9 SCC 67 ]; (2).-“State of Goa Vs Sanjay Thakran and another,” [ (2007) 3 SCC 755 ], (3).- “Deepesh Raikar Vs State” [2008 Vol. 110(5) Bom. L.R. 1671] 8. On the other hand, the learned Public Prosecutor, Mr. C. A. Ferreira invited our attention to the records which reveals that several attempts were made to trace the said Mani and Sadik but they could not be traced. He argued that the evidence of PW2 sufficiently proved that the accused, the deceased and Mani were last seen together before the death of deceased and close to the place where the deceased was found in unconscious state. According to the learned Public Prosecutor, the records reveal that the accused had no residence of his own and had no alternate clothes. He therefore contended that there is nothing to doubt that the clothes attached from the person of the accused had blood stains on them. He pointed out that the blood of the deceased was found on the T-Shirt of the accused. He therefore contended that there is nothing to doubt that the clothes attached from the person of the accused had blood stains on them. He pointed out that the blood of the deceased was found on the T-Shirt of the accused. The learned Public Prosecutor further pointed out that admittedly the accused had sustained various injuries and it is the case of the accused that the deceased had assaulted him. He therefore contended that it is proved beyond reasonable doubt that there was fight between the accused and the deceased. Therefore, according to the learned Public Prosecutor, the conclusion of the learned Trial Judge that the accused committed murder of the deceased cannot be faulted. He has placed reliance in the case of “State of Rajasthan Vs Dhool Singh”, [ (2004) 12 SCC 546 ] 9. We have perused the entire record and proceeding. 10. The first question that arises for determination is whether the death of the deceased is homicidal. 11. The evidence of PW-2 proves that the deceased was lying on the water tank, in unconscious state and with injuries to the head. PW-2 had telephoned the police, who came and took the injured to the hospital. 12. PW-12, PSI, R. T. Parab was duty officer at Calangute Police Station on 14/03/2008 and at about 17.00 hours he received a phone call from PCR Panaji informing that one person is lying near Alcon Hotel, Maddawado, Calangute. He proceeded along with the staff and saw that behind D'Cunha Bar, on a water tank, there was blood. On inquiries he learnt that the injured was shifted to PHC Candolim. PW-12 went to PHC Candolim and learnt that the injured was shifted to Goa Medical College, Bambolim. PW-12 went there. As the deceased was not in fit condition to give statement, PW-12 came back to the scene of offence and conducted the Panchanama of the scene of offence. 13. During the panchanama of the scene of offence, (Exhibit 42), duly proved by PW-7, Mr. Douglas D'Souza, inter alia a cemented stone (M. O. 4) was attached, from the scene. As per the report of the CFSL, Hyderabad, duly proved by PW11, Shri S. Sathyan, human blood was detected on the said cemented stone. 14. PW-5, Dr. C. N. Fernandes examined the deceased on 14/03/2008 at about 7.00 p.m. The hurt certificate issued by PW-5 is at Exhibit 25. As per the report of the CFSL, Hyderabad, duly proved by PW11, Shri S. Sathyan, human blood was detected on the said cemented stone. 14. PW-5, Dr. C. N. Fernandes examined the deceased on 14/03/2008 at about 7.00 p.m. The hurt certificate issued by PW-5 is at Exhibit 25. PW-5 has stated that the injured had sustained head injury with multiple cranial fractures with extra dural haemorrhage with intraventricular bleed and multiple contusions of the brain with left ear bleed. According to PW-5, all the said injuries were caused by blunt object, within six hours duration and they were grievous and dangerous in nature. PW-5 has stated that the said injuries were sufficient in the ordinary course of nature to cause death. He has stated that the said injuries can be caused if a cemented stone is hit on the head. In his cross-examination, PW-5 has specifically stated that such injuries cannot be caused if a person falls from height on a stone. 15. The deceased died on 07/04/2008. Between 15.45 hours to 16.45 hours, on 07/04/2008, Inquest Panchanama (Exhibit 11) was conducted by PW-13, in the presence of PW-1, Shri Sujukumar Sukumaran and another pancha witness. PW-1 has proved the said Inquest Panchanama. 16. PW-6, Dr. Andre Fernandes conducted the postmortem examination on the dead body of the deceased. The Memorandum of Autopsy is at Exh.30. PW-6 noticed following external injuries: (1) Grazed abrasion, 6cm x 4.5cm, with pink coloured healed scar tissue on right side fronto temporal region. On reflection of the scalp, there is extravasation of blood in the right side fronto temporal parietal region, measuring 1.5cm x 8 cm with effusion of blood in the right temporalis muscle. There is “1 cm x 8 mm” depressed fracture to right parietal bone in the temple region with three arms of fissure fractures originating from it. The middle anterior arm extends forwards to the supra orbital ridge of right orbit measuring 3.5 cm x linear; the inferior anterior arm 2.5 cm x linear extends to the lateral wall of right orbit and superior vertical arm extends upwards for 1 cm and then goes inwards and extends into the interior cranial fossa over the roof of right orbit for a length of 2.5 cms. (2) Non-healing ulcer 5.5 cm x 5 cm, with infected margins and having greenish yellowish slough at the centre. (2) Non-healing ulcer 5.5 cm x 5 cm, with infected margins and having greenish yellowish slough at the centre. On reflection of the scalp, there is extravasation of blood present surrounding the ulcer in the left side parietal eminence. There is effusion of blood in the left temporalis muscle. There is “4.5 cm x linear” fissure fracture extending from base of skull at middle cranial fossa to left mastoid region and extends inwards till the seller turcica, measuring 11. 2 cm in the left side middle cranial fossa. (3) Non-healing infected ulcer with infected margins, a yellow slough, mercurochrone 3cms x 2 cms, on the dorsal aspect of right elbow. (4) Non-healing infected ulcer with infected margins, a yellow slough, mercurochrone 4 cms x 3 cms, on left shoulder blade on back of chest. (5) Non-healing infected ulcer with infected margins and yellow slough with reddened and inflammed margins, 8 cms x 5 cms, on lower back, sacral region. (6) Injection prick marks for management of I.V. Fluides and medication 1 mm in diameter on both cubital fossae and dorsum of both hands and dorsum of both wrists. (7) Tracheostomy for management of air way, 1.5. cm x 1 cm, on lower front of neck. 17. PW-6 has stated that the injuries no. 1 and 2 were caused by hard and blunt object; injuries no. 3, 4 and 5 were caused by pressure contact bed sores; injury no. 6 was caused by hypodermic needles; and injury no. 7 was surgical procedure, all of which were ante-mortem. 18. On internal examination, the following was noticed by PW-6: There was shaggy yellow matter loosely attached over whole of base of brain i.e., the both cerebral hemisphere and over the cerebellum. There is evidence of cortical thinning and flatening of the sulci gyri. The brain is oedematous with herniation of the uncus and hippocampal gyrus of cerebrum and tonsils of the cerebellum. The second and third tracheal rings cut in the mid line with partial healing of the periphery. Thick mucoid matter with yellow pus flabes and pus pockets present all over both lungs surfaces and interlobar fissures. On cut section the lungs on the posterior aspect have fissures of gray hepatisation and the middle and anterior zones/ areas have features of grey hepatisation. 19. Thick mucoid matter with yellow pus flabes and pus pockets present all over both lungs surfaces and interlobar fissures. On cut section the lungs on the posterior aspect have fissures of gray hepatisation and the middle and anterior zones/ areas have features of grey hepatisation. 19. As per the opinion of PW-6, the death of the deceased occurred due to septicaemic shock in a person with cranio cerebral damage vide injuries no. 1 and 2, consequent to blunt force impact by object or surface which are fatal in the ordinary course of nature. PW-6 has also opined that the injury no. 1 was probable by hitting of cemented stone and injury no. 2 can be caused if the head is fixed to the ground or any hard surface and on the other part of the head, the stone is hit. According to PW-6, the injury sustained by the deceased can be caused by hitting with the cemented stone (M.O.4). 20. It is nobody's case that the deceased died an accidental or suicidal death. The circumstances in which the deceased was found lying on the cemented water tank, with injuries; the existence of blood stained cemented stone nearby and the nature of injuries sustained by the deceased sufficiently prove that the death of the deceased was homicidal. 21. The next point for consideration is whether the prosecution has proved beyond reasonable doubt that the accused is the author of the injuries sustained by the deceased which resulted in to his death. 22. The evidence of PW-12, PSI, R. T. Parab, reveals that they had made efforts to trace the whereabouts of Mani and of Sadik Biyali but they could not be found. PW-12 showed the case diary to the learned Trial Judge wherein the facts about the search made on different dates, is mentioned. Therefore, there is no force in the contention of the learned counsel for the accused that the non-examination of Mani and Sadik gives rise to adverse inference. There is other convincing evidence on record. 23. The evidence of PW-2 reveals that the accused, the deceased (Rehman) and one Mani used to regularly visit his bar namely “D'Cunha Bar” for consuming liquor and they used to sleep behind his bar on a cemented water tank. There is other convincing evidence on record. 23. The evidence of PW-2 reveals that the accused, the deceased (Rehman) and one Mani used to regularly visit his bar namely “D'Cunha Bar” for consuming liquor and they used to sleep behind his bar on a cemented water tank. His evidence undoubtedly reveals that on 14/03/2008 at about 12.30 p.m., the accused, the deceased and Mani had consumed Kaju fenni in D'Cunha Bar. PW-2 has deposed that he closed the bar at 2.30 p.m. and went for lunch and at about 4.45 p.m. returned back to his bar and saw many people gathered outside his bar. PW-2 then saw the deceased Rehman, lying, in an unconscious state, on the water tank behind his bar, with blood oozing out from his head. PW-2 then telephoned police on number 100. Police came and took Rehman to the hospital. 24. The testimony of PW-2 is not shaken in the cross-examination. There is no reason for PW-2 to tell lies. His evidence is natural and wholly reliable. Thus, as stated by PW2, the accused, the deceased and Mani were last seen together at about 2.00 p.m. to 2.30 p.m., when they had gone out of the bar of PW-2 but by about 4.45 p.m., the deceased was found in unconscious state, on the water tank behind the same bar and he had sustained injuries to his head. The evidence on record proves that thereafter, the deceased was taken to P.H.C. Candolim, from there to GMC, Bambolim where he was taking treatment till 07/04/2008. The deceased died on 07/04/2008, in GMC, Bambolim while undergoing treatment. The death of the deceased is proved to be homicidal. 25. PW-12, Shri R. T. Parab, the investigating officer who had lodged the complaint, Exhibit 87, on behalf of the State, against the accused, has deposed that on 15/3/2008, with the help of the witness Sadik, the accused was apprehended and brought at the police station and arrest panchanama was conducted in the presence of two panch witnesses by name Sachit Sadekar and Shridhar Shetty. In his cross-examination, PW-12 has stated that as he did not know Raghu Sarangi (accused), he had told Sadik to search the accused. PW-12 has further stated that Sadik had told him that the accused sometimes used to sleep behind D'Cunha Bar and sometimes on Calangute beach. In his cross-examination, PW-12 has stated that as he did not know Raghu Sarangi (accused), he had told Sadik to search the accused. PW-12 has further stated that Sadik had told him that the accused sometimes used to sleep behind D'Cunha Bar and sometimes on Calangute beach. PW-12 has stated that Sadik went towards the beach along with them and at that time the accused was hiding behind the beach shack by name “planet” and Sadik showed the accused to them. 26. PW-8, Mr. D. N. Shridhar Shetty has deposed that on 15/03/2008, he along with one more person acted as pancha witness for panchanama of the arrest of the accused. PW-8 has identified the accused in the Court and has stated that he was wearing an orange colour T-Shirt and half jean pant which were dirty and PSI Rahul Parab told the accused to remove the said T-shirt and jean pant and that another set of shirt and pant was given to him to wear. According to PW-8, the T-shirt removed by the accused was having blood stains and dirty and the same was put in a transparent polythene bag and then in the envelope which was duly packed and sealed. The panchanama is at Exhibit 46. PW-8 was shown the said orange T-shirt which was taken out in the open Court from the envelope which was sent in a sealed condition by CFSL, Hyderabad. PW-8 has identified the T-Shirt as the same which was worn by the accused, at the time of his arrest. In his cross-examination, PW8 has stated that he did not remember the colour of the pant and shirt which was supplied by the police to the accused after the accused removed his clothes. Except the above, there is nothing in the cross-examination of the PW-8 which would render his testimony, unreliable. The fact that PW-8 could not remember the colour of the pant and shirt supplied by the police to the accused, will not make PW-8 unreliable, since we are not concerned with the said clothes and further since the evidence of Dr. Andre Fernandes (PW-6), who examined the accused soon after his arrest, found the same clothes on his person. 27. The above evidence of PW-8 was put to the accused while questioning him under Section 313 of the Code of Criminal Procedure (Cr. P.C.). Andre Fernandes (PW-6), who examined the accused soon after his arrest, found the same clothes on his person. 27. The above evidence of PW-8 was put to the accused while questioning him under Section 313 of the Code of Criminal Procedure (Cr. P.C.). In answer to the said question, the accused has replied that he was wearing sleeveless T-Shirt with name “Jack Daniel” and long jean pant and due to assault by Rehman, the blood came out from his head and fell on his T-shirt. The Panchanama of the attachment of the clothes of the accused was drawn between 15.00 hours to 16.10 hours on 15/03/2008. The accused was examined by PW-6, Dr. Andre Fernandes on 15/03/2008 after 5.35 pm. PW-6 has deposed that the accused was wearing the grayish white sleeveless T-Shirt with print of “Jack Danials” on front and blue jeans, dirty and mud soiled. Thus, the clothes referred to by the accused in his statement under section 313 of Cr.P.C. are the clothes which were given to accused to wear, after the orange colour T-shirt with blood stains and the jean pant was removed by him and both were attached by the police. 28. PW-11, Shri S. Sathyan is the Senior Scientific officer working at CFSL, Hyderabad and at the relevant time he was the head of D.N.A. and Biology unit. His evidence, inter alia, reveals that the orange half sleeves T-Shirt which was worn by the accused at the time of arrest contained the blood stains which were of human male origin which were identical with the blood of the deceased. Therefore the statement of the accused that due to the assault by Rehman on his head, the blood came out from his head (head of the accused) and fell on his T-Shirt, is false. The blood group of the accused, as per the evidence of PW-3, Dr. Sanjay Korgaonkar is 'A' Rh Positive whereas the blood group of the deceased, as per the evidence of PW-4, Dr. Indrani Pal is 'O' Rh Positive. 29. Admittedly, the accused does not have any permanent place of residence, in Goa. He used to sleep at the Calangute beach or behind the D'Cunha Bar. After the incident, the accused was hiding. He had no alternate clothes. That explains as to why even on 15/03/2008, the accused was found with blood stained T-Shirt on his person. 30. PW-6, Dr. Admittedly, the accused does not have any permanent place of residence, in Goa. He used to sleep at the Calangute beach or behind the D'Cunha Bar. After the incident, the accused was hiding. He had no alternate clothes. That explains as to why even on 15/03/2008, the accused was found with blood stained T-Shirt on his person. 30. PW-6, Dr. Andre Fernandes had found following injuries on the person of the accused: 1. Haematoma, reddish, tender on touch, 3.5 cm x 2 cm on right side frontal region, front border is placed 4 cm behind frontal hair line. 2. Superficial laceration 8 x 5 mm, on right side back of head, 7 cm behind, from right mastoid prominence. 3. Grazed abrasion, reddish, 1 cm x 5 mm, with surrounding reddish bruise with tenderness and pain on tough on left side front, parasternal region, precordial region, grazed abrasion, reddish, 2.5 cm x 1 cm, on front outer aspect of left deltoid region. 4. Grazed abrasion, reddish with soft scab, brownish, 1.5 cm x 1 cm on dorsal outer aspect of upper 1/3 rd of left forearm, elbow area. 5. Grazed abrasion with underlying bruise, reddish 2 x 1.5 cm on medial inner aspect of left knee with tenderness of patella. 31. When PW-6 had questioned the accused as to how he had sustained these injuries, he stated that the injuries no. 1 and 2 were caused when the victim Rehman assaulted him with a soda bottle; injuries no. 3, 4 and 5 were caused when the victim Rehman gave him kicks; whereas the injury no.6 was caused when the stone flung by the victim Rehman hit him. A soda bottle having the name “have a good day” was found near the window of the back side of the said Bar of PW-2 and the same was attached by the police during the panchanama of the scene of offence. 32. In his statement under section 313 of the Cr. P.C., the accused has stated that he sustained injuries as he was assaulted by the deceased Rehman on 14/03/2008 at about 2.00 p.m. after he took lunch. The accused has stated that the deceased Rehman was drunk at that time. 33. 32. In his statement under section 313 of the Cr. P.C., the accused has stated that he sustained injuries as he was assaulted by the deceased Rehman on 14/03/2008 at about 2.00 p.m. after he took lunch. The accused has stated that the deceased Rehman was drunk at that time. 33. The following, duly established, circumstances emerge from the above evidence: (i) the deceased had sustained grievous bleeding injuries on his head; (ii) A cemented blood stained stone was found at the scene of offence; (iii) The accused had also sustained various injuries; (iv) According to the accused, the deceased had assaulted him. (v) The blood of the deceased had fallen on the T-Shirt of the accused. (vi) The injuries sustained by the deceased could have been caused by the cemented stone (M.O.4). 34. The only conclusion which can be drawn from the above circumstances is that there was a fight between the accused and the deceased in which both assaulted each other. The evidence on record shows that the death of the deceased occurred due to the assault by means of cemented stone on his head. 35. In the cases of “Anil Kumar Singh” and “Sanjay Thakran and another”(supra), the requirements of circumstantial evidence in order to base conviction, thereon are stated. In the case of “Sanjay Thakran and another”(supra), the doctrine of “last seen together” has also been explained. In the case of “Deepesh Raikar”(supra), the aspects of circumstantial evidence, motive, conduct of the accused and effect of false explanations given by the accused in the statement under section 313 of Cr.P.C., have been dealt with. We have gone through the said citations. The principles laid down in the cases supra are well known. Lack of proof of motive for the accused does not prove the innocence of the accused, in the circumstances of the present case, as there was a fight between him and the deceased. The circumstances proved by the prosecution, in the present case, form a chain of events which does not permit any conclusion other than the one of guilt of the accused. The above citations do not help the accused in any manner. The case of “Dhool Singh”(supra), relied upon by the learned Public Prosecutor, is not applicable to the facts and circumstances of the present case. 36. The above citations do not help the accused in any manner. The case of “Dhool Singh”(supra), relied upon by the learned Public Prosecutor, is not applicable to the facts and circumstances of the present case. 36. In the present case, it is proved beyond reasonable doubt that the accused is the author of the injuries sustained by the deceased, which resulted into his death. 37. The last question that remains to be determined is whether the act of the accused, of causing injuries to the deceased which resulted into his death, amounts to murder. 38. The incident of the assault took place on 14/03/2008 whereas the death of the deceased took place on 07/04/2008 i.e. after about 23 days. The death occurred due to septicaemic shock in a person with cranio cerebral damage vide injuries no. 1 and 2. The evidence on record duly proved that there was a fight between the accused and the deceased. The accused was not carrying any weapon prior to the incidence. The reason for the said fight is not known. The motive for the accused is not known. It can be said that in the course of the fight between the accused and the deceased, the accused exceeded his right of private defence and he fixed the head of the deceased to the ground whereas on the other side of the head of the deceased he hit the cemented stone. The evidence on record reveals that the accused and the deceased used to move around together, do some labour work for earning livelihood and together used to consume liquor and also sleep together at night time. Learned Advocate Ms. Matkar is right in contending that the case of the accused cannot fall within the definition of murder. The act of the accused squarely falls under Exception 2 to Section 300 of I.P.C. The voluntary causing of death in the exercise of right of private defence reduces what would otherwise be murder to the offence of culpable homicide not amounting to murder. It is difficult to hold that the accused had any intention to kill the deceased. The act of the accused falls under Part II of Section 304 of the I.P.C. Such a view has been taken by the Hon'ble Supreme Court in somewhat identical circumstances in the case of Mavila T. Nambiar v/s. State of Kerala reported in AIR 1997 SC 687 . The act of the accused falls under Part II of Section 304 of the I.P.C. Such a view has been taken by the Hon'ble Supreme Court in somewhat identical circumstances in the case of Mavila T. Nambiar v/s. State of Kerala reported in AIR 1997 SC 687 . 39. The learned Trial Judge does not seem to have considered the aspect of fight between the accused and the deceased. The Trial Judge has concluded, without giving any reason, that the accused assaulted the deceased Rehman with a cemented stone on his head with the intention of causing such injuries to Rehman as he knew to be likely to cause the death of Rehman. In our view, the conclusion of the learned Trial Judge is erroneous. We hold that the accused has committed the offence punishable under section 304, Part II of I.P.C., as the accused did not have intention of causing death of the decease, though he had knowledge that his act is likely to cause death. 40. Heard the learned counsel for both the parties on the point of sentence. Looking to the status of the deceased and the accused person, as labourers having even no residence and the fact that they were otherwise staying together, we are of the view that the punishment of rigorous imprisonment for six years and payment of fine of Rs. 5,000/- would serve the purpose of interest of justice. 41. In the result, we pass the following: ORDER (1) The Appeal is partly allowed. (2) The impugned Judgment and Order convicting and sentencing the accused for the offence punishable under section 302 of I.P.C. is quashed and set aside. (3) The accused is convicted for the offence punishable under Section 304, Part II of I.P.C. and is sentenced to undergo rigorous imprisonment for six years and to pay fine of Rs. 5,000/-, in default to undergo further rigorous imprisonment for three months. (4) The period during which the accused remained in custody shall be set off in terms of section 428 of Cr.P.C. (5) Muddemal properties shall be destroyed, after a period of 90 days.