JUDGMENT : C.V. Bhandang, J. 1. The challenge in this appeal is to the conviction of the appellant for the offence punishable under section 302 of I.P.C. The appellant has been sentenced to suffer imprisonment for life and to pay a fine of Rs.10,000/- and in default to suffer simple imprisonment for six months. 2. The prosecution case may be briefly stated thus: That the appellant and now deceased, Rajesh Indawar were room-mates staying, in a room at the factory premises of Mandovi Metals Pvt. Ltd., Kundaim-Goa. In the night intervening between 5th and 6th December, 2011, both the appellant and the deceased had an altercation while under influence of liquour. According to the prosecution, the appellant assaulted the deceased with a sickle resulting in his death. 3. The prosecution examined in all 13 witnesses and produced the record of the investigation. The appellant did not enter into the witness box nor examined any defence witnesses. The defence of the appellant is of total denial and false implication. 4. The learned Sessions Judge framed a solitary point as to whether the prosecution proves that during the night intervening between 5th and 6th December 2011 the appellant did commit the murder of Rajesh Indawar. The learned Sessions Judge answered the point in the affirmative and proceeded to convict and sentence the appellant as aforesaid. 5. We have heard Shri Zaveri, the learned counsel for the appellant and Shri Amonkar, the learned Additional Public Prosecutor for the Respondent/State. With the assistance of the learned counsel for the parties, we have gone through the evidence and the record as also the impugned judgment. 6. It is submitted by Shri Zaveri, the learned counsel for the appellant that there is no direct evidence in this case. It is submitted that the case rests on circumstantial evidence and the individual circumstances have neither been established nor they form a complete chain so as to unerringly point to the guilt of the appellant. The learned counsel for the appellant has extensively taken us through the evidence in order to point out certain discrepancies and improbabilities. It is submitted that there were two rooms intervening between the room of PW.6, Munchun Roy and the room where the deceased and the appellant were staying. The learned counsel for the appellant has extensively taken us through the evidence in order to point out certain discrepancies and improbabilities. It is submitted that there were two rooms intervening between the room of PW.6, Munchun Roy and the room where the deceased and the appellant were staying. It is submitted that it is highly improbable that none of the inmates of these two rooms were alerted due to the alleged altercation and due to the incident in which the deceased was assaulted by the appellant. He, therefore, submits that the learned Sessions Judge was in error in convicting the appellant. 7. The learned counsel for the appellant has canvassed an alternate submission. It is submitted that going by the case of the prosecution there was a quarrel/altercation which had ensued between the appellant and the deceased which was witnessed by Pw.xx. It is submitted that thus in all probability, the deceased was injured in the course of the altercation and the scuffle and no intention to cause death can be attributed to the appellant. It is submitted that the prosecution evidence is indicative of the fact that the death is caused in the course of a sudden quarrel and without premeditation. It is submitted that the medical evidence would suggest that the neck of the deceased was found to be pressed and pointed end of the sickle touched the left side eyebrow. Thus, the evidence also does not show that the sickle was used with the intention of causing death and at the highest this would be a case where knowledge can be attributed to the appellant of the death of Shri Rajesh being likely to be caused. 8. On behalf of the appellant reliance is placed on the decision of the Supreme Court in the case of Akunsh Shivaji Gaikwad Vs. State of Maharashtra (2013) 6 SCC 770 , in order to submit that the intention to cause death has to be gathered generally from a combination of several of the circumstances as are discernible from the prosecution evidence. It is further submitted that the circumstances as are discernible from the prosecution case, are not sufficient to indicate an intention to cause death of the deceased. The learned counsel has therefore prayed for modification of the conviction to one under section 304 Part II of I.P.C. 9. It is further submitted that the circumstances as are discernible from the prosecution case, are not sufficient to indicate an intention to cause death of the deceased. The learned counsel has therefore prayed for modification of the conviction to one under section 304 Part II of I.P.C. 9. Shri Amonkar, the learned Additional Public Prosecutor has submitted that the various circumstances as have been relied upon by the learned Secessions Judge have been properly established and they form a complete chain so as to exclude the hypothesis of innocence. The learned Additional Public Prosecutor has submitted that the evidence has to be appreciated on the basis of broad human probabilities and considered in such a light, the submission is that the evidence is acceptable and one inspiring confidence. In so far as the alternate submission made on behalf of the appellant is concerned, the learned Additional Public Prosecutor in all fairness states that the prosecution evidence does indicate that there was an altercation between the appellant and the deceased which was noticed by P.W.1 prior to the incident and thus the possibility of the injury being inflicted in the heat of passion cannot be ruled out. He, therefore submits that this Court may pass appropriate order. 10. We have carefully considered the rival circumstances and the submission made. 11. The prosecution has examined in all 13 witnesses out which P.W5, Kalpesh Patel, who is the factory manager, P.W.6. Munchun Roy and P.W.8 Kalinga Kalita, who are both supervisors at the Mandovi Metals Pvt. Ltd., and the Medical Officer P.W.4, Dr. Madhu, who has conducted the autopsy on the dead body would be relevant witnesses to be considered. At the outset, it would be necessary to make a reference to the evidence as to the cause of death. P.W.4 Dr. Madhu Ghodkirekar has noticed the following injuries on the dead body, which were all found to be ante mortem: (i) Tram like pattern bruising having two linear parallel haemorrhages for a length of 12 cms and width of 2.5 cms. It is placed obliquely over right side of neck, with lower anterior end 4 cms below midchin and upper posterior end, 2 cms. below mastoid process. The in between floor or this bruising has patchmatisation effect like that in pressure abrasion. It is placed obliquely over right side of neck, with lower anterior end 4 cms below midchin and upper posterior end, 2 cms. below mastoid process. The in between floor or this bruising has patchmatisation effect like that in pressure abrasion. On dissection of neck there was extensive extravasation of blood for entire right side soft tissue neck including tearing of right internal caroty artery exactly under the injury. There was also fracture dislocation for C3-C4 cervical spine. This injury was caused by blunt object. (ii) Wedged shaped incised wound of 2 x 1 x 0.25 cms over outer cantmus of left eye. It was bone deep. Dried blood stains were present around this injury. This injury was caused by sharp weapon. Both injuries were antemortem in nature. These injuries are shown diagrammatically on page 4 of the Report. On internal examination it was seen that there was thin sub archnoid haemorrhage for base of both sides of brain. There was also extensive damage for soft tissue of entire right side of neck with tear for right carotid artery at its branches. Petechial haemorrhage for mucose of trachea and effusion of blood for intercostal muscle of both side chest. Lungs were congested and edematous. Stomach contained masticated food with fermentation like smell.” In the opinion of P.W.4, the cause of death was due to asphyxia and damage to the right side of the neck including cervical spine fracture, as result of compression of neck vide injury no.1. The said injury was antemortem and fresh at the time of death and was found to be necessarily fatal. It can thus be seen that the injury no.1 is a Tram like pattern on the neck and is described as a “pressure abrasion”. On dissection of the neck there was extensive extravasation of blood for entire right side soft tissue neck and there was also fracture/dislocation of C3-C4 cervical vertebrae. In the opinion of P.W 4 this injury was caused by a blunt object. On dissection of the neck there was extensive extravasation of blood for entire right side soft tissue neck and there was also fracture/dislocation of C3-C4 cervical vertebrae. In the opinion of P.W 4 this injury was caused by a blunt object. It can thus clearly be seen that assuming that the injury was caused by the appellant by means of the sickle, the appellant had used the blunt side of the sickle and the only injury which may be attributable to the pointed end of the sickle would be injury no.2 i.e. over the outer cantmus of left eye which injury has not been found to be responsible for the death of deceased Rajesh. 12. Let us now turn to the evidence of P.W.6, Munchun Roy. P.W.6 was working as a supervisor at Mandovi Metals. It has come in his evidence that both the appellant as well as the deceased were working in the factory and were doing the work of unloading of scrap. Both the appellant as well as the deceased were natives of Jharkand and were sharing a room provided by the company in the factory premises. This witness states that on 5/12/2011, the applicant and the deceased worked in the factory till about 6.30 p.m and after having dinner they left the room/factory at about 8.00 to 8.15 p.m. and returned at about 10.30 pm., when they were under influence of liquor. P.W.6 states that the appellant and the accused were discussing something in a loud voice in their local language. It is specific evidence of P.W.6 that when he went to their room, he saw that the deceased was sitting on the cot and the appellant was standing in front of him with a koita/sickle in his hand. He states that the appellant and the deceased were fighting/quarreling on some matter. He asked them to keep quiet and then returned to his own room. At about 12.30 to 1.00 am. the appellant came to the room of this witness and told him that he had assaulted Rajesh and he wants to sleep in the room of this witness. P.W6 asked the appellant to sleep outside his room. The following morning i.e. on 6/12/2011 at about 7.30 a.m. P.W.6 went to the room of deceased and found that the deceased was lying on the floor with injury mark on his neck and near the eye brow. P.W6 asked the appellant to sleep outside his room. The following morning i.e. on 6/12/2011 at about 7.30 a.m. P.W.6 went to the room of deceased and found that the deceased was lying on the floor with injury mark on his neck and near the eye brow. He then informed about the incident to P.W.5, who is the factory manager. Before going to the evidence of P.W.5, it would worthwhile to notice the evidence of P.W.8, who is another supervisor working in the factory. This witness also states in categorical terms that both the appellant as well as the deceased had gone out at about 8p.m. and had returned to the factory premises at about 10.p.m. when both of them were under influence of liquor. Incidentally P.W.8 stays at Mardol and he claims that after he saw the appellant and the deceased in the factory premises he went to Mardol. The evidence of P.W6 and P.W.8 is criticized on the ground that it is improbable. However, we are not inclined to accept the same. It was contended on behalf of the appellant that there were two rooms in between the room where P.W.6, Munchun Roy was staying and the room shared by the appellant and the deceased and thus it is unlikely that the occupants of these two rooms were not alarmed, if at all there was a quarrel/altercation between the appellant and the deceased. We find that the evidence of any such witness has to be appreciated on broad human probabilities. Although it has come on record that there were two rooms in between the room shared by the appellant and the deceased and the room where P.W.6 was staying, there is nothing on record that these two rooms were occupied. Be that as it may, merely because, there is nobody forthcoming as witness, who were staying in these two rooms, the evidence of P.W.6 which otherwise inspires confidence in our view cannot be brushed aside. Thus, if we consider the evidence of P.W.6 and P.W.8 together, it is clear that the appellant and the deceased were sharing the same room on the factory premises, that they had gone out in the evening at 8p.m. and had returned to the factory premises at about 10 to 10.30 p.m. in an inebriated state. Thus, if we consider the evidence of P.W.6 and P.W.8 together, it is clear that the appellant and the deceased were sharing the same room on the factory premises, that they had gone out in the evening at 8p.m. and had returned to the factory premises at about 10 to 10.30 p.m. in an inebriated state. The evidence of P.W6 also clearly indicates that there was an quarrel/altercation between the appellant and the deceased in the night intervening between 5th and 6th December 2011. We then have the evidence of P.W.5, who is a factory manager. P.W.5 says that on 6/12/2011 while he was entering the factory premises at about 7.30 to 8 a.m, P.W6 M. Roy telephonically informed him that Rajesh was lying on the floor of the room with a bleeding injury. P.W5 went to the room of Rajesh and found that Rajesh was lying on the floor. There was a sickle lying by his side and a plastic mat. P.W5. telephonically informed this to P.S. Ponda. After the police arrived at the spot, P.W.5 lodged a complaint Exhibit 33. The evidence of this witness would corroborate the evidence of Munchun Roy. The learned counsel for the appellant had pointed out the portion of the cross examination of this witness where P.W 5 had stated that one of the employees of the factory had written the complaint as dictated by him. This by itself cannot derogate from the substratum of the evidence of this witness because this witness states that the complaint was drafted as per his say. 13. We have carefully gone through the evidence of this witness and we do not find any reason to disbelieve the same. Thus the circumstances which can be said to be proved against the appellant, are that both the appellant and the deceased were staying together and sharing the room in the factory premises of Mandovi Metals, that on 5th December 2011 they had gone together out of the premises at about 8 p.m. and had returned at about 10 to 10.30 p.m when both were under influence of liqour. The evidence of P.W6 clearly shows that in the night there was some altercation/quarrel between the appellant and the deceased in which the appellant was found standing in front of the deceased with a sickle in his hand. The following morning, Rajesh was found dead. The evidence of P.W6 clearly shows that in the night there was some altercation/quarrel between the appellant and the deceased in which the appellant was found standing in front of the deceased with a sickle in his hand. The following morning, Rajesh was found dead. The evidence of P.W.6 clearly shows that there was some quarrel and hot discussion/altercation which had ensued between the appellant and the deceased in the night intervening between 5th and 6th of December, 2011. As noticed earlier, the medical evidence does not show that the sharp edge of the sickle was used for assaulting the deceased. The injury which is found to be responsible for death is a 'pressure abrasion', on the neck which the Medical Officer states to be likely to be caused by a blunt object. We thus find that in all probability it was during the course of the altercation/quarrel and while both the appellant and the deceased were under influence of liquor, that the deceased was assaulted by the blunt side of the sickle causing a pressure abrasion and fracture/dislocation of the cervical spine. At the cost of repetition it needs to be stated that the injury no.1 alone is found to be sufficient in the ordinary course of nature to cause death. We also find from the evidence on record that the appellant has not taken undue advantage or acted in a cruel or unusual manner in this case. 14. A brief reference may be made at this stage to the decision in the case of Ankush S. Gaikawad (supra). The Supreme Court after taking survey of various decisions including the decision in the case of Pulicherla Nagaraju Vs. State of A.P. (2006) 11 SCC 444 , has inter alia held that the intention to cause death can be gathered from a combination of few or several circumstances. The following observations in para 29 are apposite: “Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters plucking of a fruit, straying of a cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Many petty or insignificant matters plucking of a fruit, straying of a cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no pre-meditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under section 302, are not converted into offences punishable under section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances: (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any pre- meditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention.” 15. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention.” 15. It can thus be seen that while deciding as to the nature of the offence and while deciding whether the act was intentional or an act in which only knowledge can be attributed to the accused, the Court has to take note of several circumstances and the conjoint effect of the same including the nature of the weapon used, whether the blow was aimed at a vital part of the body, the amount of force employed in causing the injury and whether the act was done in the course of sudden quarrel or sudden fight or free for all fight. Whether the incident occurs by chance or whether there was any premeditation; and whether there was any prior enmity or whether the deceased was a stranger to the accused/appellant. Whether there was any grave and sudden provocation and if some, the cause of such provocation, whether it was in the heat of passion and whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner, and last but not the least whether the accused dealt a single blow or several blows. The evidence in this case clearly suggests that there was no prior enmity between the appellant and the deceased and in fact they were sharing the same room and were working together in the factory premises. 16. On a careful consideration of the overall circumstances in our view, the offence would be covered by Exception 1 and/or Exception 4 to Section 300 of I.P.C. We thus find that the conviction of the appellant for the offence punishable under section 302 of I.P.C needs to be modified to one under Section 304 part II of I.P.C. 17. This takes us to the question of sentence. The appellant was arrested on 6/12/2011 and has thus been in custody for over a period of 5 and half years. The offence under section 304 Part II of I.P.C attracts a sentence which may extend to 10 years or with fine or with both. 18. The appellant was about 22 years of age on the date of the incident and would be aged about 28 years as on today. The offence under section 304 Part II of I.P.C attracts a sentence which may extend to 10 years or with fine or with both. 18. The appellant was about 22 years of age on the date of the incident and would be aged about 28 years as on today. Looking to the nature of the offence, the circumstances in which it is committed and the age of the appellant, and further having regard to the fact that there are no criminal antecedents to the discredit of the appellant, in our considered view, the sentence for the period already undergone, would be adequate to meet the ends of justice. In the result, the following order is passed: ORDER: (i) The appeal is partly allowed. (ii) The conviction of the appellant for the offence punishable under section 302 of I.P.C. is modified to one under section 304 Part II of I.P.C. (iii) The appellant is sentenced to suffer imprisonment for the period already undergone and to pay a fine of Rs.10,000/- (Rupees ten thousand only) and in default to suffer simple imprisonment for one month. (iv) The appellant shall be set at liberty on deposit of the fine (if not already deposited) and if not required in connection with any other offence. (v) The order as regards disposal of the property is hereby maintained.