JUDGMENT V.M. KANADE, J. 1. The appellant, who is the original accused, is challenging the judgment and order of conviction dated 20th September, 2011, passed by the Additional Sessions Judge, Fast Track Court-I, South Goa, Margao in Sessions Case No. 19/2010. Learned Additional Sessions Judge, by the judgment and order was pleased to convict the accused for the offence punishable under Section 302 of the Indian Penal Code and sentence him to suffer rigorous life imprisonment and payment of fine of Rs.25,000/-, in default, to undergo rigorous imprisonment for a further period of two years. It was directed that the fine amount should be paid to the mother of the deceased. (Hereinafter, the appellant, shall be referred to as the “accused”). 2. The prosecution case, in brief, is that the accused was the uncle of the deceased and the families of both, the accused and the deceased, were residing in their ancestral house in separate parts of the house. The deceased was staying in his house along with his father, mother and brothers by name Prajyot and Pramod. The case of the prosecution further is that there were disputes between the accused and the deceased. According to the prosecution, a few days prior to the incident, the deceased had damaged the articles from the house of the accused, namely TV, fridge, etc. and the accused had become furious over it. He was, however, restrained by his wife and daughter. On the day of the incident, in the morning at about 8.30 to 9.30, the father of the deceased had gone to purchase fish from the market and after he came back, the deceased, who was in the verandah of the house , was inquiring with his mother PW.4 Sundari Gaonkar as to where his clothes were. At that time, the accused who was sitting in the verandah on a cement bench, had altercation with the deceased Vithoba and assaulted him with a 'danda'. The case of the prosecution further is that the mother of the deceased PW.4 Sundari saw the said incident. As a result of the said assault, the deceased Vithoba collapsed and thereafter, he succumbed to the injuries. He was declared dead on arrival of the deceased in the hospital. The accused was thereafter arrested. The case of the prosecution further is that the mother of the deceased PW.4 Sundari saw the said incident. As a result of the said assault, the deceased Vithoba collapsed and thereafter, he succumbed to the injuries. He was declared dead on arrival of the deceased in the hospital. The accused was thereafter arrested. The investigating officer recorded the statements of witnesses and charge-sheet was filed against the accused for the offence punishable under Section 302 of the Indian Penal Code. 3. The charge was framed against the accused. The accused pleaded not guilty to the said charge. The prosecution, in support of its case, examined in all 16 witnesses. The evidence consisted of the eye witness account given by PW.4 Sundari, the mother of the deceased, and the evidence of wife and daughter of the accused, who turned hostile. The trial Court, on the basis of the evidence adduced by the prosecution, convicted the accused for the offence punishable under Section 302 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for life and directed to pay a fine of Rs.25,000/-, in default, to undergo rigorous imprisonment for a further period of two years. 4. Learned Counsel appearing on behalf of the appellant submitted that the entire case of the prosecution rested on the sole ocular testimony of PW.4 Sundari, mother of the deceased. He further submitted that the wife of the accused PW.6 Parvati Gaonkar did not support the prosecution case. He submitted that there were several contradictions in the statements of PW.4 Sundari and it was difficult to rely on the testimony of the said witness. He further submitted that the said witness was an interested witness and, as such, no reliance could be placed on her testimony. He further submitted that the mother of the deceased, in her examination-in-chief itself, had admitted that the deceased was alcoholic and was in habit of drinking alcohol and was picking up quarrels with several persons. He submits that she has admitted that the deceased used to assault his own father, his brother Prajot and also other members of the family, including the accused and his family members. He submits that she has admitted that the deceased used to assault his own father, his brother Prajot and also other members of the family, including the accused and his family members. He submitted that it was suggested in the cross examination on behalf of the accused that there was a fight between PW.8 Prajot and the deceased Vithoba and in the said fight the deceased died and the accused was falsely implicated in the present case. 5. On the other hand, learned Additional Public Prosecutor, appearing on behalf of the State, has taken us through the statements of witnesses, judgment and order of the trial Court and has submitted that the motive to commit murder was established by the prosecution. She submitted that a couple of days prior to the incident, namely on 12th March, 2010, the deceased had damaged the TV and other articles from the house of the accused and the accused had said that he would kill the deceased. She further submitted that, therefore, on 14th March, 2010, the accused had, accordingly, mercilessly assaulted the deceased. She invited our attention to the injuries which were found on the person of the deceased by taking us through the evidence of PW.10 Dr. Madhu Ghodkirekar who had performed the postmortem of the deceased. She further submitted that the Chemical Analyser's report also indicated that there was blood found on the clothes of the accused, which was another circumstance which would establish the case of the prosecution. She, therefore, submitted that the judgment and order of the trial Court may be confirmed. 6. We have heard both the Counsel at length. In the present case, the prosecution has examined in all 16 witnesses. PW.1 Vishwas Sawant Dessai was a panch witness for arrest panchanama which is at Exhibit 10. PW.2 Mohan Gaonkar was a panch witness in respect of the scene of offence panchanama and the inquest panchanama which is at Exhibits-12 and 15 respectively. The prosecution had examined PW.3 Amar Patil who was the Emergency Medical Technician in EMRI 108 vehicle, PW.4 Sundare Gaonkar, mother of the deceased, PW.5 Poonam Gaonkar, daughter of the accused who turned hostile, though her statement was recorded under Section 164 of Cr.P.C. PW.6 Parvati Gaonkar, wife of the accused also turned hostile though her statement under Section 164 of Cr.P.C. was recorded. PW.7 Dr. Mandar Kantak was the Asst. PW.7 Dr. Mandar Kantak was the Asst. Lecturer, Forensic Medicine, Goa Medical College. This doctor had examined the accused and submitted the report Exhibit 30. He also had sent a letter dated 15th March, 2010 for blood grouping of the accused which is Exhibit 31. Exhibit 32 was a Blood Bank Report of the accused dated 15th March, 2010 showing the blood group of the accused as 'A' Rh Positive. PW.8 Prajot Gaonkar is the brother of the deceased, who is not an eye witness to the said incident. PW.9 Shashikant Gaonkar is an independent witness and the neighbour of the accused and the deceased. PW.10 Dr. Madhu Ghodkirekar, is the Doctor who performed post mortem (Exhibit 37) of the deceased. PW.11 Ganesh Gaonkar is the neighbour of the deceased and the accused whose mobile was used by PW.8 Prajot Gaonkar to phone his brother Pramod Gaonkar and 108 ambulance. PW.12 Sunil Gaonkar was another neighbour of the accused and the deceased who turned hostile. PW.13 Damodar Gaonkar is the brother in law of the accused and the uncle of the deceased, who also turned hostile. PW.14 was the Police Sub-Inspector who was then attached to Curchorem Police Station and only recorded complaint of the father of the deceased Exhibit 50. PW.15 Gajanan Gadekar, was the Police Constable who was attached to Verna Forensic Science Laboratory and PW.16 Bhanudas Dessai, was the Investigating Officer. The accused admitted the report of the Central Forensic Science Laboratory at Exhibit 53 under Section 294 of Cr.P.C. 7. The accused has not seriously disputed that the death of the deceased Vithoba was homicidal. PW.10 Dr. Madhu Ghodkirekar has, in his evidence, mentioned the number of injuries which were found on the deceased and has stated that the injuries No.4, 5 and 6 were collectively fatal and the cause of death was due to asphyxia, as a result of compression of neck, nose and lips in a person who was incapacitated by head injury. 8. Madhu Ghodkirekar has, in his evidence, mentioned the number of injuries which were found on the deceased and has stated that the injuries No.4, 5 and 6 were collectively fatal and the cause of death was due to asphyxia, as a result of compression of neck, nose and lips in a person who was incapacitated by head injury. 8. Since the prosecution has established the death of Vithoba as homicidal, the next question which is to be considered is who is the author of the said injuries which were found on the person of the deceased and whether the prosecution has established that the accused has committed the murder of the deceased Vithoba or whether it has been established that if the offence under Section 302 is not established, he has committed offence punishable under Section 304(I) of IPC ? 9. The star witness in the present case is PW.4 Sundari Sukdo Gaonkar, mother of the deceased Vithoba. In her evidence she has stated that the deceased Vithoba was her son and the accused is her brother-in-law. They were residing in their ancestral house and the portions were divided separately. She stated that she was residing in the first portion on the right side; whereas her mother in law was residing in the middle potion and the accused was residing in the third portion on the left hand side. She has stated that the incident took place in March, 2010 and she was in the kitchen and her husband had gone away to buy fish from the market. According to her, her husband came home after purchasing fish from the market and the deceased Vithoba asked her husband to give him money for hair cutting and accordingly, her husband Sukdo Gaonkar gave Rs.250/- to the deceased Vithoba. Vithoba then asked her as to where his clothes where. Therefore, she came out of the kitchen and at that time she saw Vithoba standing in front of their door facing her and the accused sitting on a cement sofa of his house and had, thereafter, according to her, hit Vithoba with a danda on back of his neck. Thereafter, according to her, Vithoba brought a stone and threw it on the accused. However, the accused was not hit by the said stone. Thereafter, according to her, Vithoba brought a stone and threw it on the accused. However, the accused was not hit by the said stone. She then stated that the accused then caught hold of the legs of Vithoba and threw him down and started assaulting him with the fist blows. She then stated that the accused then sat over Vithoba and started assaulting him and then pressed his neck. The accused then brought a cable wire and rope from his house, first hit the cable wire on the back of Vithoba and thereafter tied legs of the accused with the rope. He tied entire body of the deceased. She also stated that the accused hit the deceased with the danda on his chest also. She has stated that the accusing was saying that whatever had happened earlier, had happened, but he was not going to leave the deceased on that day. PW.4 stated that the blood was oozing out from the mouth and ear of the deceased and there was pool of blood near their door in the verandah. She stated that the accused dragged the deceased down from the steps and thereafter threw him on the ground. Thereafter ambulance was called and the person from the ambulance examined the deceased and told them that Vithoba had expired. Thereafter, a complaint was lodged by her husband, who died during the pendency of the trial. 10. In the cross examination, the witness admitted that the deceased used to take alcohol because of his work and he used to refuse to take meals served to him. She also admitted that on the previous day of the incident, the deceased was taken by the police and he remained there for one night. She also admitted that the said complaint was lodged by her son Pramod. The deceased was also detained in the custody. She further stated that the deceased used to drink liquor and there used to be verbal altercations amongst the members of the family and the deceased. She also admitted that her husband had earlier assaulted the deceased, due to which he sustained fracture of his leg and he had to be hospitalized. 11. PW.4 is the only eye witness to the said incident. She also admitted that her husband had earlier assaulted the deceased, due to which he sustained fracture of his leg and he had to be hospitalized. 11. PW.4 is the only eye witness to the said incident. It has been submitted by the learned Counsel appearing on behalf of the accused that PW.4 is an interested witness and had given the evidence to implicate the accused. He has submitted that there are some contradictions and omissions in her statements. He further submitted that from her evidence, it can be seen that the deceased was in habit of picking up quarrels even with the members of his own family. He submitted that, therefore, no reliance could be placed on the testimony of PW.4 Sundari. In our view, this submission is without any substance. It is well settled position in law that merely because a person is interested witness, his evidence cannot be discarded on that account. It cannot be said that merely because PW.4 is the mother of the deceased, her evidence has to be discarded in toto. It cannot be forgotten that the parties are close relations and even the accused is the brotherin- law of PW.4 and, therefore, it cannot be said that the witness would deliberately implicate her own brother in law, particularly, when in her own evidence she had stated that there was no enmity between the accused and the deceased. 12. Apart from that, PW.4 Sundari is most natural witness. She is the mother of the deceased and she was present in the house when the said incident took place and, as such, she has given truthful account in her evidence and has also candidly admitted the quarrelsome nature of her son and also the fact that the deceased was assaulted on some occasions by her husband on account of his behaviour. Taking an overall view of the matter, the evidence of PW.4 clearly inspires confidence and even though there are minor contractions and omissions, those contractions and omissions cannot be considered to be major contradictions and omissions. 13. In our view, therefore, PW.4 has clearly established that the deceased was assaulted by the accused after he was tied up with the cable wire and then assaulted with the danda. 14. 13. In our view, therefore, PW.4 has clearly established that the deceased was assaulted by the accused after he was tied up with the cable wire and then assaulted with the danda. 14. So far as her evidence concerning the allegations that the accused was pressing his neck is concerned, it has come on record as an improvement and that she had not made any such statement before the police. This fact has been established by the Investigating Officer PW.16 Bhanudas Dessai, and PW.4 Sundari. 15. So far as other witnesses are concerned, PW.1 Vishwas and PW.2 Mohan are the panch witnesses. Nothing turns out of the evidence of these two witnesses, since the arrest panchanama and the inquest panchanama are not seriously disputed by the accused. PW.3 Amal Patil is the Emergency Medical Technician, PW.5 Poonam Gaonkar, is the daughter of the accused and PW.6 Parvati Gaonkar is the wife of the accused both of whom have turned hostile. Similarly, PW. 7 Dr. Mandar Kantak who had given the medical report of the accused, is also not seriously disputed by the accused. PW.8 Prajot Gaonkar and PW.9 Shashikant Gaonkar are not eye witnesses to the said incident. PW.11 Ganesh Gaonkar is a neighbour whose mobile was used by the brother of the deceased to call his brother Pramod and to call ambulance. PW.12 Sunil Gaonkar is also a neighbour of the accused and who also turned hostile. Similarly PW.13 Damodar Gaonkar, brother in law of the accused and uncle of the deceased, also turned hostile. 16. The next question, therefore, which falls for consideration is whether the prosecution has established that the accused was responsible for committing the murder of the deceased ? In order to answer this question, the evidence of PW.10, Dr. Madhu S.G. Ghodkirekar has to be taken into consideration. PW.10 Dr. Madhu S. G. Ghodkirekar, in his evidence has stated that he had conducted postmortem on the dead body of Vithoba and on examination, the following external injuries were found on the person of the deceased: 1. Contused laceration of 2x1 cm, bone deep over right side occipital region. 2. Bruise 6x5 cms. over right side cheek. 3. Grazed abrasion in an area of 20 x 19 cms. on left side auricular region of face covering left cheek and lateral aspect of neck. There was laceration of 0.5 x 0.25 cm. for left pinna. 4. Contused laceration of 2x1 cm, bone deep over right side occipital region. 2. Bruise 6x5 cms. over right side cheek. 3. Grazed abrasion in an area of 20 x 19 cms. on left side auricular region of face covering left cheek and lateral aspect of neck. There was laceration of 0.5 x 0.25 cm. for left pinna. 4. Bruising over inner aspect upper lip in area of 3 x 2 cms. 5. Bruising over inner aspect lower lip in area of 2.5 cm. X 1.5 cm. 6. Bruising over inner aspect of both alae of nose. 7. Abrasion, red 3 x 3 cms. size over back of right shoulder blade. 8. Inverted U shaped rail road pattern bruise, red of 21 cms. length on back and below left shoulder blade. 9. Bruise, red, 4 x 2 cms. over front of right thigh. 10. Bruise, red 3 x 1.5 outer aspect of right thigh. 11. Bruise, red 4 x 2 cm. back of right thigh. 12. Bruise, red 2 x 1 cm. back of right leg. 13. Bruise, red 4 x 1 cm. back of left thigh. 14. Bruise, red 3 x 2 cm. outer aspect of left leg. 15. Laceration of 4 x 1.5 cm. over outer aspect of right leg. 15 cria7-12 16. Laceration of 1 x 0.5 cm. in between web of thumb and index finger of left palm. 17. Abrasions 4 in number in area of 6 x 5 cms. over front of right leg upper one third from knee downwards. 18. Five abrasions, red, in an area of 8 x 6 cms. over front of left knee and upper portion of left leg. 17. PW.10 has stated that the injuries No.1 to 18 are ante-mortem injuries and could be caused by blunt weapon/object. Injuries No.19, 20, 21 and 22 are ligature and ligature marks. So far as internal injuries are concerned, he has stated that there was effusion of blood over both side parietal region and occipital region and there was sutured separation over right parital bone extending to left. Subarachnoid haemorrhage was present all over brain. He has stated that there was no appreciable ligature mark around the neck. There were bruising in area of 1.5 cm. x 1 cm. on right side of hyoid and 1 x .05 cm. Subarachnoid haemorrhage was present all over brain. He has stated that there was no appreciable ligature mark around the neck. There were bruising in area of 1.5 cm. x 1 cm. on right side of hyoid and 1 x .05 cm. area of bruising on left side of hyoid with inward compression fracture for right horn of hyoid cartilage. He then stated that the cause of death was due to asphyxia, as a result of compression of neck, nose and lips in a person who was incapacitated by head injury and tying ligatures around upper and lower limbs. In the cross examination, PW.10 has admitted that externally, there were no injuries on the chest, and on the neck, and except the internal bruising, there was no external injury. He also admitted that individually, the injuries on the body was not fatal, but the injuries at serial Nos. 4, 5 and 6 were collectively fatal. 18. From the evidence of this witness, it can be seen that the Doctor has admitted that the injuries at serial nos. 1 to 18 are in the nature of bruises, lacerations and injuries No. 3, 4 and 5 collectively would have caused the death. In the examination in chief, the Doctor does not state that these injuries are sufficient in the ordinary course of nature to cause the death. From the evidence of this witness, therefore, it has to be seen whether the prosecution has established, on the basis of ocular testimony of the eye witness PW.4 and the medical testimony of PW.10, that the accused had committed the offence punishable under Section 302 of the Indian Penal Code. From the evidence on record, it can be seen that the incident took place in the morning between 8.30 to 9.30. At that time, there was no altercation and the deceased was preparing himself to leave the house ostensibly to have a haircut, after borrowing money of Rs.250/- from his father. The accused was sitting on a cement bench in the verandah, which was situated in his portion of the house. At that time, there was no altercation and the deceased was preparing himself to leave the house ostensibly to have a haircut, after borrowing money of Rs.250/- from his father. The accused was sitting on a cement bench in the verandah, which was situated in his portion of the house. The deceased was inquiring about his clothes from his mother and at that point of time, there was a sudden altercation and PW.4 has stated that the accused then said that whatever might have happened in the past, but he was not going to leave the deceased on that occasion and thereafter, the accused assaulted the deceased with the danda on his neck. Thereafter, the deceased went down the vernadah and brought a big stone and threw that stone towards the accused. However, fortunately for the accused, the said big stone did not hit him. Thereafter, the accused brought a coir rope and tied the deceased with the coir rope. The accused tied his feet and thereafter gave fist blows to the deceased. According to PW.4 Sundari, mother of the deceased, the accused even dragged the deceased down the ground from the staircase. 19. From the evidence of this witness, in our view, it cannot be said that the intention of the accused was to commit the murder of the deceased. Nor can it be said that the injuries caused by the accused were sufficient in the ordinary course of nature to cause death, nor he had knowledge that these injuries were likely to cause death. The injuries which were found on the deceased, particularly injury nos. 1, 2, 7 to 18 and 19, 20 and 21, individually and collectively cannot be said to be sufficient in the ordinary course of nature to cause death of the deceased, as stated by Doctor PW.10. PW.10 in his evidence has stated that injuries No.4, 5 and 6 collectively were responsible for the death, taking into consideration the fact that the accused was incapacitated on account of injuries on the head and being tied by the rope. It has to be noted that PW.4 though, at one stage, stated that the accused had pressed the neck of the deceased, in the cross examination she has admitted that she had not so stated before the police and, therefore, her testimony of the neck being pressed by the accused is clearly an afterthought. It has to be noted that PW.4 though, at one stage, stated that the accused had pressed the neck of the deceased, in the cross examination she has admitted that she had not so stated before the police and, therefore, her testimony of the neck being pressed by the accused is clearly an afterthought. There is, therefore, no evidence to show that the accused had pressed the mouth and the nose of the deceased and then pressed his neck. 20. Be that as it may, without going into the said question, the fact remains that there is no material on record to show that the accused had pressed the neck of the deceased and as a result, the internal injuries which have been described by PW.10 were caused to the deceased, cannot be ascribed to the accused. There was, obviously, a sudden fight. Two days' before the incident the deceased had damaged articles from the house of the accused. Inspite of that provocation, the accused did not do anything to the deceased. It has also come on record from the evidence of PW.4 that the deceased was an alcoholic and was in a habit of picking up quarrels, not only with the neighbours, but also with his own father, brothers and mother. 21. Taking an overall view of the matter, and taking into consideration the testimony of PW.4 and the evidence of Doctor PW.10 who performed postmortem on the dead body of the deceased, in our view, the prosecution has not been able to establish that the accused had committed the murder of the deceased Vithoba and, therefore, the accused cannot be said to have committed the offence punishable under Section 302 of the Indian Penal Code. In our view, therefore, the ocular evidence on record which is corroborated by the medical evidence which has been brought on record, clearly establishes that the appellant, original accused has committed an offence punishable under Section 304 (I) of the Indian Penal Code. 22. The appeal is partly allowed. The accused is acquitted of the offence punishable under Section 302 of the Indian Penal Code. The accused, however, is convicted for the offence punishable under Section 304(I) of the Indian Penal Code and sentenced to suffer rigorous imprisonment for five years and to pay a fine of Rs.25,000/- and in default to undergo rigorous imprisonment for a further period of two years. The accused, however, is convicted for the offence punishable under Section 304(I) of the Indian Penal Code and sentenced to suffer rigorous imprisonment for five years and to pay a fine of Rs.25,000/- and in default to undergo rigorous imprisonment for a further period of two years. The appellant accused is entitled for a set off for the period which he has already undergone under Section 428 of Criminal Procedure Code. The fine amount, if paid by the accused, shall be paid to the mother of the deceased PW.4 Sundari Gaonkar.