JUDGMENT : M.S. Sonak, J. 1. Heard learned counsel for the parties. 2. The challenge in these appeals is to the judgment and order dated 25th June, 2019 in Sessions Case No.46/2014 by which the learned Sessions Judge convicted Zane Almeida (accused) for offences under Section 326 of IPC and sentenced him to undergo rigorous imprisonment for three years. A direction was also issued to pay compensation of Rs.50,000/- to the victim Rafael Peregrino Da Costa (Rafael) and the direction was issued that in default the accused shall undergo further simple imprisonment for a period of three months. The period of detention already undergone was directed to be set aside under Section 428 of Cr. PC. 3. Criminal Appeal No.38 of 2019 has been instituted by the accused questioning his conviction, sentence and the direction for payment of compensation. 4. Criminal Appeal No.54 of 2019 has been instituted by the victim Rafael questioning the acquittal of the accused for offence under Sections 201 and 307 of IPC. 5. Similarly, Criminal Appeal No.7 of 2020 is instituted by the State questioning the acquittal of the accused under Sections 201 and 307 of IPC. 6. Accordingly, it is only appropriate that all these appeals are disposed of by a common judgment and order. 7. After the learned counsel for the parties and the learned Public Prosecutor were heard extensively, we pronounced the operative portion of our order on 2nd September, 2020, which reads as follows:- “We have heard the learned Counsel for the parties extensively. 2. For the reasons which we are separately recording, we are satisfied that the appellant in Criminal Appeal No. 38 of 2019, i.e. Zane Keith Almeida, should not have been convicted under Section 326 of the IPC but rather, he was required to be convicted under Section 335 of the IPC. Accordingly, we set aside his conviction under Section 326 of the IPC and substitute the same with conviction under Section 335 of the IPC. 3. Consequent upon setting aside the conviction under Section 326 of the IPC, the sentence for 3 years rigorous imprisonment is also set aside and the same is substituted by a sentence of imprisonment for the period already undergone by the said Zane Almeida. The record indicates that he has already undergone a sentence of approximately 7 months or thereabouts. 4. Consequent upon setting aside the conviction under Section 326 of the IPC, the sentence for 3 years rigorous imprisonment is also set aside and the same is substituted by a sentence of imprisonment for the period already undergone by the said Zane Almeida. The record indicates that he has already undergone a sentence of approximately 7 months or thereabouts. 4. We find that by the impugned judgment and order dated 29.06.2019 the learned Sessions Judge had directed Zane Almeida to pay compensation of Rs.50,000/- to PW-8, Rafael Peregrino Da Costa, i.e. the victim, and in default to undergo further simple imprisonment for a period of 3 months. The learned Counsel for the parties, including the learned Additional Public Prosecutor agree that there can be no in-default imprisonment directed for failure to pay the amount of compensation. Accordingly, even that portion of the impugned judgment is set aside. 5. Insofar as the issue of compensation to be paid by Zane Almeida to PW-8, Rafael Peregrino Da Costa, the victim, who has lost his eye in the incident, Mr. Lotlikar, learned Senior Advocate for Mr. Zane Almedia and Mr. De Sa, learned Counsel for the PW-8 – Rafael Peregrino Da Costa, who, has, in fact, preferred Criminal Appeal No. 54 of 2019, submitted that the parties have settled amongst themselves the issue of quantum of compensation which is to be paid by the said Zane Almeida to Rafael Peregrino Da Costa. Mr. Lotlikar, in fact states that today itself, a cheque bearing No. 111400 dated 15.10.2020 drawn on Bank of India, Miramar Branch will be handed over to Rafael Peregrino Da Costa. 6. Mr. De Sa, submits that PW-8, Rafael Peregrino Da Costa, has agreed to the aforesaid arrangement. We also ascertained from Mr. Rafael Peregrino Da Costa, who appeared before us through video-conferencing, that he is agreeable to the adoption of the aforesaid course of action. 7. Accordingly, all these 3 appeals are disposed off in the aforesaid terms. The impugned judgment is also modified in the aforesaid terms. 8. Now, we proceed to set out our reasons in support of the aforesaid operative portion of our order. 9. At the outset, we take up for consideration the Criminal Appeal Nos.54 of 2019 and 7 of 2020 which, challenge the acquittal of the accused for offence under Sections 201 and 307 of IPC. 10. 8. Now, we proceed to set out our reasons in support of the aforesaid operative portion of our order. 9. At the outset, we take up for consideration the Criminal Appeal Nos.54 of 2019 and 7 of 2020 which, challenge the acquittal of the accused for offence under Sections 201 and 307 of IPC. 10. In so far as the offence under Section 201 of IPC is concerned, we must say that we do not agree with the reasoning of the learned Sessions Judge that there can be no conviction under Section 201 of IPC, because the assault weapon i.e. knife in the present case was not ultimately found by the investigating agency. This according to us is not a correct proposition in law. However, taking into consideration the state of evidence on record, we are constrained to say that ultimately, the conclusion recorded by the Sessions Judge, may be a plausible conclusion. This is because there is no clear and independent evidence brought on record by the prosecution, sufficient to bring the case under the provisions of Section 201 of IPC. 11. The learned Public Prosecutor did attempt to rely upon the statement of the accused given while in police custody, in which, he is alleged to have stated to the police that he threw the knife in question into a water body, very close to the place where the crime was alleged to have committed by him. However, such knife was ultimately never recovered. Therefore, to such a statement, protection of Section 27 of the Evidence Act might not apply. This, renders, at least ultimate conclusion recorded by the learned Sessions Judge, a plausible conclusion. 12. However, we must say that if we were to independently evaluate the evidence on record then, it is possible, that we might have convicted the accused under Section 201 of IPC. This is because, the accused, in his statement under Section 313 Cr.P.C., had taken a plea of private defence while attempting to assault the victims with a knife. Besides, the accused, had examined Amit Surliker (DW1) as a defence witness, who had also deposed to assault by the accused on the victims with a knife. In such circumstances, we might have held that it was for the accused to explain what happened to the knife. 13. However, the parameters of an appeal against the acquittal are quite limited. Besides, the accused, had examined Amit Surliker (DW1) as a defence witness, who had also deposed to assault by the accused on the victims with a knife. In such circumstances, we might have held that it was for the accused to explain what happened to the knife. 13. However, the parameters of an appeal against the acquittal are quite limited. Therefore, if a plausible view has been taken by the learned Sessions Judge, it is not for us to interfere with such view, merely because we might have, if we were dealing with the matter in first instance, recorded a conviction in the matter. 14. Besides, even if we were to convict the accused under Section 201 of IPC, the sentence of about seven months which the accused has already undergone in this matter would have been more than adequate. Therefore, no useful purpose will be served by interfering with the acquittal recorded by the learned Sessions Judge, in so far as the offence under Section 201 of IPC is concerned. 15. In so far as the offence under Section 307 of IPC is concerned, we agree that no such case has been made out by the prosecution and the evidence on record is by no means sufficient to convict the accused under Section 307 of IPC. 16. Mr. Faldessai and Mr. De Sa point out to the grievous injuries upon the victims and submit that this is clearly a case where the accused either intended to kill the victim or, the accused had full knowledge that his act would kill the victims. They therefore submit that the offence under Section 307 of IPC was not made out. 17. No doubt, the injury in so far as Rafael is concerned was certainly severe and grievous. However, the nature of the injuries cannot be sole consideration for determining whether an offence under Section 307 of IPC has been made out. In some cases, the injuries may not be so grievous or there may be no injury at all, even then, a case under Section 307 of IPC can be said to have been made out. Conversely, merely because the injury is grievous, it cannot be said that invariably a case under Section 307 of IPC is made out. 18. In some cases, the injuries may not be so grievous or there may be no injury at all, even then, a case under Section 307 of IPC can be said to have been made out. Conversely, merely because the injury is grievous, it cannot be said that invariably a case under Section 307 of IPC is made out. 18. Now the evidence on record, indicates that the accused and his girl friend were present at the pub “Down the Road”, some time between 2.00 a.m. and 5.30 a.m., on 20.04.2017 which was incidentally a Easter day. Two victims as well as their family and friends were also at the same pub on the same date during the same period. Apparently, everyone in the pub was partying until the early hours. There is medical evidence that the victims had themselves consumed alcohol. There is also ocular evidence about the victims and their friends consuming alcohol at the pub. 19. The evidence on record indicates that at about 5.05 a.m., the accused, stepped out of the pub and his girl friend followed him soon thereafter. While they were standing on the pavement outside the pub, the incident in question has taken place in which, two victims sustained grievous knife injuries from the knife wielded by the accused. In fact, Rafael, even lost his eye in the incident. 20. There is no evidence that the accused knew the victims or the victim's friends before the incident. The prosecution has not made out any case of any previous enmity between the accused and the victims. On the contrary, it is specific defence of the accused that the victims and their friends passed some lewd and abusive comments concerning his girl friend and even threatened him and attempted to molest his girl friend. Faced with this grave and sudden provocation, the accused claims to have taken out knife from his pocket and swung it forcefully in the direction of the victims. The injuries were the result. 21. The prosecution witnesses, have no doubt, deposed to the incident, in the sense, that the victims were hurt by the assault made by the accused with his knife or sword as the case may be. The victim, has himself admitted that the weapon was a knife and not really a sword as deposed to by some of the witnesses. 21. The prosecution witnesses, have no doubt, deposed to the incident, in the sense, that the victims were hurt by the assault made by the accused with his knife or sword as the case may be. The victim, has himself admitted that the weapon was a knife and not really a sword as deposed to by some of the witnesses. However, the prosecution witnesses have not been extremely candid, when it comes to genesis of the entire incident. The prosecution witnesses, curiously fall silent when the question about the nature of heated arguments or reason why the arguments took place, in the first place. Most of the witnesses, who were around the victims and the accused, feign having not heard the nature of arguments or genesis of incident. 22. The medical evidence, also suggests that the accused did not stab the victims at any particular part of their bodies. The nature of injuries suggests that they were made by swinging the knife, no doubt, with great force and velocity. This is evident from slash on the neck of one of the victims, which, fortunately was turned out to be quite superficial. Rafael however, was slashed with knife over his eye and nasal bone as a result of which he sustained grievous injuries and had to lose his eye. 23. The evidence on record, makes out absolutely no case that the accused, had any intention to murder these victims. Taking into consideration the circumstances in which the incident had taken place as well as the time of the incident, it can hardly be said that the accused had knowledge that his act will result in murder of the victims. Therefore, we are not persuaded to hold that any case under Section 307 of IPC has been made out. 24. Accordingly, Criminal Appeal Nos.54 of 2019 and 7 of 2020, which question the acquittal of the accused under Sections 201 and 307 of IPC are liable to be dismissed. 25. We next come to the Criminal Appeal No.38 of 2019 instituted by the accused questioning his conviction under Section 326 of IPC. 26. Mr. Lotlikar, learned Senior Advocate for the accused has submitted that there is no clear evidence on record to connect the accused with the crime. He pointed out that there are serious inconsistencies as regards the alleged spot of the incident. 26. Mr. Lotlikar, learned Senior Advocate for the accused has submitted that there is no clear evidence on record to connect the accused with the crime. He pointed out that there are serious inconsistencies as regards the alleged spot of the incident. He pointed out that there are serious contradictions and omissions in the testimony of the prosecution witnesses. For all these reasons, there was no case made out to convict the accused under Section 326 of IPC. 27. Mr. Lotlikar in the alternate submits that this was a case where the plea of private defence was invoked by the accused and such plea, has been made out from the testimony of the prosecution witnesses as well as the defence witness. He submits that the defence of the accused person is required to be evaluated by adopting the principle of preponderance of probability only. He therefore submits that the plea of private defence was liable to be upheld and consequently the accused, was entitled to be acquitted of the charges levelled against him. 28. Mr. Lotlikar without prejudice to the aforesaid, contended that in worst possible scenario, the accused could have convicted under Section 335 of IPC and not under Section 326 of IPC. He submits that this was a clear case where the victims themselves offered sudden and grave provocation to the accused and therefore all the ingredients of Section 335 of IPC may be attracted. He submits that the accused has already undergone sentence of about seven months as under-trial prisoner and if convicted, under Section 335 of IPC, the sentence already undergone may be treated as adequate sentence. 29. At the conclusion of arguments, the learned counsel for the parties informed the Court that they would have talks amongst themselves on the issue of compensation, if any payable by the accused to Rafael. Ultimately, as recorded by us in operative portion of the order, the accused and Rafael did arrive at some agreement on the quantum of compensation. They submitted that this aspect may be taken into consideration while deciding these appeals. 30. The learned Public Prosecutor and Mr. De Sa countered the contention of Mr. Lotlikar and pointed out that the plea of private defence was not at all made out since, in this case, the accused himself was aggressor. In any case, they pointed out that the action of the accused was totally disproportionate. 30. The learned Public Prosecutor and Mr. De Sa countered the contention of Mr. Lotlikar and pointed out that the plea of private defence was not at all made out since, in this case, the accused himself was aggressor. In any case, they pointed out that the action of the accused was totally disproportionate. They pointed out that the burden of establishing any grave and sudden provocation was on the accused and the accused in the present case, has failed to discharge the same. 31. In so far as the plea on private defence is concerned, we cannot say that the accused has succeeded in making good the same. The onus of establishing this plea is squarely upon the accused and from the evaluation of evidence on record, we are not quite satisfied that such plea has been made out by the accused, even going by the test of preponderance of probability. 32. There is no evidence on record that the victims and their friends were the aggressors in the sense that they were the ones who attempted either to assault the victims or molest his girl friend. The evidence on record however does suggest that it is the victims and their friends who offered grave and sudden provocation to the accused. It is in the heat of passion induced by this sudden grave provocation, that the accused was excited and brandished a knife which he swung with great force and velocity, thereby resulting in slash injury upon the victims. Therefore, this is more a case under Section 335 of IPC, where the grievous injury is caused by the accused on grave and sudden provocation, without any intention of causing the same or knowing himself likely to cause the same. 33. The onus of establishing the grave and sudden provocation from the victims is upon the accused who alleges the same. However, in evaluation of such a plea, the test to be applied is that of preponderance of probability only. The accused, is not required to establish his defence beyond pale of reasonable doubt. It is sufficient, if the accused, probabalises his defence. For this purpose, the accused, is entitled to rely upon the testimony rendered by the prosecution itself as also, the defence evidence if any that may have been led by the accused. The accused, is not required to establish his defence beyond pale of reasonable doubt. It is sufficient, if the accused, probabalises his defence. For this purpose, the accused, is entitled to rely upon the testimony rendered by the prosecution itself as also, the defence evidence if any that may have been led by the accused. To a certain extent, even the plea of the accused in his statement under Section 313 of Cr. PC is not entirely irrelevant and is required to be taken into consideration. 34. In this case, if the testimony of the prosecution witnesses is analysed, then, it is apparent that even the prosecution witnesses accept that there were some heated arguments between the accused, the victims and their friends. The prosecution witnesses have attempted to down play the nature of this heated arguments or reason why such heated arguments took place in the first instance. However, even from the evidence of the prosecution itself, it is apparent that the action of the accused who was alongwith his girl friend, was not really some unprovoked action. 35. The accused by way of defence evidence has examined one Amit Surliker (DW1). Now, there is ample evidence on record to establish that DW1 was a security guard standing outside the pub at the time of the incident. The prosecution had also cited DW1 as a witness. However, the prosecution dropped him on the specious plea that he has not seen the incident. 36. The statements of the prosecution witnesses before the police had clearly referred to the presence of DW1 outside the pub at the time of incident. Even, some of the prosecution witnesses have deposed to the presence of DW1 at the time of incident. Therefore, there is merit in the contention of Mr. Lotlikar that the prosecution was not justified in simply dropping DW1 as a prosecution witness on the specious but uncorroborated plea that DW1 had not seen the incident. Some prejudice, has undoubtedly occasioned the accused on account of non examination of DW1 as prosecution witness. Nevertheless, such prejudice stands substantially mitigated by examination of DW1 as a defence witness. 37. DW1 has deposed that the incident took place in his presence. DW1 has also deposed to the grave and sudden provocation offered by the victims and their friends as a consequence of which, the accused took out a knife and swung it with force. Nevertheless, such prejudice stands substantially mitigated by examination of DW1 as a defence witness. 37. DW1 has deposed that the incident took place in his presence. DW1 has also deposed to the grave and sudden provocation offered by the victims and their friends as a consequence of which, the accused took out a knife and swung it with force. DW1 has thus probabalised the defence raised by the accused that his act was a consequence of grave and sudden provocation offered by the victims and their friends. 38. The accused in his statement under Section 313 of Cr. P.C., has referred to specific abuses hurled by the victims against his girl friend. DW1 in his testimony has also referred to abuses though, he may not have used the precise words now used by the accused in his statement under Section 313 of Cr. P.C. However, that according to us, this hardly makes any difference. The prosecution witnesses, were also questioned about the abuses, and DW1 has also deposed about the abuses. As noted earlier, the prosecution witnesses have not been quite candid when it comes to the issue of provocation. The prosecution witnesses have accepted that there were heated arguments followed by some commotion. However, the witnesses, seem to say that they have not really heard what the whole arguments were about. 39. Some of the prosecution witnesses have deposed that the complainant Sumesh alias Joe, PW7, who was knowing the girl friend of the accused called out to her or wished her good night and it is this which sparked the incident. In fact, this is the prosecution version, which, to some extent has even been accepted by the learned Sessions Judge. 40. However, if the testimony of Sumesh (Joe) i.e. PW7 is perused then he does not seem to support such a version. Thus, it is apparent that there was grave and sudden provocation offered by the victims but the prosecution witnesses have not been candid about the same. In these circumstances, some credence will have to be given to the evidence of DW1, who was admittedly present at the site. The defence of the accused persons as raised in his statement under Section 313 of Cr. P.C., will also have to be taken into account, now that this defence is corroborated by the prosecution witnesses to some extent and quite fully by DW1. 41. The defence of the accused persons as raised in his statement under Section 313 of Cr. P.C., will also have to be taken into account, now that this defence is corroborated by the prosecution witnesses to some extent and quite fully by DW1. 41. As pointed out earlier, the accused, has to establish his defence only on the test of preponderance of probability and the test of proof beyond reasonable doubt is not applicable to him. Applying such test we are quite satisfied that the action of the accused in causing grievous hurt to the victims was a consequence of grave and sudden provocation offered to him by the victims. There is no evidence that the accused either intended or knew himself to be likely to cause hurt to the victim. 42. Mr. Faldessai and Mr. De Sa however urge that the act of the accused was quite disproportionate and therefore, the case cannot fall under Section 335 of Cr. P.C. The issue of proportionality might have assumed considerable significance in the context of plea of private defence which we have not accepted. Section 335 of IPC itself recognizes that the accused may have voluntarily caused grievous hurt to his victim. However, where such grievous hurt is caused on a sudden and grave provocation, the provisions of Section 335 of IPC are attracted. 43. Besides, the issue of proportionality is required to be considered not merely from the ultimate nature of injuries found on victims but such issue has to be decided on the basis of all other relevant and attendant circumstances as can be borne out from the evidence on record. It is always not possible to weigh the response to a sudden and grave provocation, in some golden scales. 44. For example in the present case the evidence on record establishes that the injuries suffered by Raju Sarin, though on the neck were not even a grievous injuries but a superficial injuries. Similarly, though, the injuries suffered by Rafael was certainly a grievous injuries that may not, by itself be a ground not to bring a case under Section 335 of IPC particularly if all the other evidence of the attendant circumstances is to be taken into consideration. 45. Even the medical evidence on record suggests that the injuries are result of accused swinging his knife with some velocity. 45. Even the medical evidence on record suggests that the injuries are result of accused swinging his knife with some velocity. The injuries are not a result of any deep stab but in the nature of slash injuries. There is no evidence that the accused in this case deliberately aimed some vital parts of the victims. Unfortunately, for the victims the injuries are however on the vital parts. Mr. Lotlikar pointed out that even the doctor had classified the injuries as grievous injuries but not as dangerous injuries. This is evident from the medical evidence both documentary as well as ocular present on record. 46. Even the learned Sessions Judge, has held that he might have been inclined to convict the accused under Section 335 of IPC and not under Section 326 of IPC. However, the reasoning offered by the learned Sessions Judge for convicting the accused under Section 326 of IPC is to be found in paragraph 85 of the impugned judgment and order, the relevant portion of which reads as follows:- “...... The act of the accused in the present case is squarely covered under Section 326 IPC. The accused has voluntarily caused grievous hurt to the victims. The trigour point in the present case was PW7 Sumesh saying 'Vaisa Vaisa' to the girl who was present with the accused. But thereafter there was some argument between PW10 Raju Sarin and the accused. If there was no any argument between the two this case might have landed in conviction under Section 335 IPC. Since there was some argument between PW10 and the accused, Section 326 would be attracted.” 47. In the state of evidence on record, we are really unable to appreciate the aforesaid reasoning. The learned Sessions Judge has virtually held that because there was some argument between PW10 (one of the victims) and accused, the case cannot fall under Section 335 of IPC and if there was no argument between the two then perhaps the case would fall under Section 335 of IPC. According to us, it is only because there was some grave and sudden provocation offered by the victims that the arguments started between the accused and the victims. Therefore, the fact that there were some arguments, is not a ground not to convict the accused under Section 326 of IPC and not Section 335 of IPC. 48. According to us, it is only because there was some grave and sudden provocation offered by the victims that the arguments started between the accused and the victims. Therefore, the fact that there were some arguments, is not a ground not to convict the accused under Section 326 of IPC and not Section 335 of IPC. 48. For all the aforesaid reasons, we set aside the conviction of the accused under Section 326 of IPC and substitute the same with conviction under Section 335 of IPC. We also set aside the sentence of three years rigorous imprisonment imposed upon the accused and substitute the same with the sentence so far undergone by the accused. 49. The record indicates that the accused surrendered and was arrested by the police on the date of the incident itself i.e. 20.04.2017. The record also indicates that the accused was in custody upto 26.11.2017 of which date, he was released on bail. This is a period of almost seven months during which the accused remained in custody. According to us, this length of imprisonment would meet the ends of justice in the facts and circumstances of the present case. 50. At this stage, we also note that Section 335 of IPC is a compoundable offence. The accused, has suitably compensated Rafael who lost his eye. The compensation amount was worked out by the accused and the said Rafael and even a post dated cheque has already been handed over by the accused to the said Rafael. Taking into consideration all these circumstances cumulatively, we are satisfied that the sentence commensurate to with which the accused has already suffered will meet the ends of justice. We sentence the accused accordingly. 51. In the operative portion of our order, we have already issued direction for payment of compensation in an amount agreed upon by the victim Rafael and the accused. Such compensation shall be paid by the accused to Rafael latest by 18th October, 2020 as undertaken by the accused through his learned counsel. 52. We sentence the accused accordingly. 51. In the operative portion of our order, we have already issued direction for payment of compensation in an amount agreed upon by the victim Rafael and the accused. Such compensation shall be paid by the accused to Rafael latest by 18th October, 2020 as undertaken by the accused through his learned counsel. 52. The learned counsel for the accused has assured this Court that the accused understands that his voluntary offer of compensation in an amount agreed to by Rafael is one of the considerations in sentencing, and therefore, such compensation amount will be paid by the accused to Rafael in terms of cheque bearing No.111400 dated 15.10.2020 drawn on Bank of India, Miramar Branch, Panaji Goa. We were informed that such cheque has already been handed over to Rafael. 53. Accordingly, Criminal Appeal Nos.54 of 2019 and 7 of 2020 are hereby dismissed. Criminal Appeal No.38 of 2019 is however partly allowed in terms of the operative order now transcribed in paragraph 7 of this judgment and order. 54. All the appeals are disposed of in the aforesaid terms. There shall be no order as to costs.