N. A. BRITTO, .1.:- This is State's appeal. Tersely put, by this appeal, the State is seeking enhancement of conviction from Section 304(ii) to Section 302, I.P.C. and of sentence from seven years R.I. to life imprisonment.

2. The accused was charged and tried, inter alia, for murdering his wife, aged 35 years under Section 302, I.P.C. The accused was also charged under Sections 342 and 504, I.P.C.

The learned Sessions Judge, Margao, by his Judgment dated 28.07.2004, has acquitted the accused under Section 504, 302, I.P.C. but convicted and sentenced the accused under Section 304(ii) and 342, I.P.C.

3. The accused and the deceased were both working in MPT (Mormugao Port Trust) and were residing in a one bedroom flat, on the first floor of their house, while the mother of the accused resided on the ground floor. The accused and the deceased had two children by name Fiona, aged 6, and Favio, aged 4. The prosecution neither alleged nor proved any motive for the crime/s committed by the accused and if the evidence of the mother of the deceased, Ana Flacao/P.W.8 is any indication, it shows that she told the police that the couple was staying happily and were visiting them with their children very often. Indeed, Ana FIacao/P.W.8, also stated that on 01.03.2000, the deceased had visited her at Taleigao, with her two children on account of the birthday of her husband and went back of the next day. Brazinha/P. W.9, also stated that the deceased was her neighbour for about 5 to 6 years and during the said period, she had not witnessed any incident or a fight or a quarrel between the accused and the deceased.

Brazinha/P.W.9, has confirmed that the relationship between the accused and his wife was normal. In other words, there was nothing abnormal about their relationship.

4. The incident culminating into the death of the deceased, as per the prosecution, took place between 07.15 p.m. to 9.00 p.m. on 07.03.2000. However, if the scenario is reconstructed, it shows that the so called quarrel between the husband and wife had started much earlier. As per Santan Correira/P.W.l, when he reached there, at about 7.00 to 7.15 p.m., there were already about 10 to 12 policemen including Officers present. Anthony/P.W.ll stated that at about 6.00 p.m., when he was near the Sunrise Bar and was talking to his friends, he heard the sound of shouting towards Holy Cross Chapel, near the house of the accused, and at that time, he saw the accused on the first floor of his house near a window and according to him it was the beginning of the incident which continued for about three hours or so. However, the facts on record show that Anthony/P.W.II, might have reached there much later. As per Jude/P.W.2., some people who were present had stated that the incident had started at 3.40 p.m. and others stated that it had started at 5.30 p.m. The I.O. Shri. Banaulikar/P.W.18., was informed about the incident, as stated by him, at about 7.30 p.m. and he reached the scene at about 8.00 p.m. and this has been confirmed by Anthony/P.W.II , when he stated that PI Banaulikar/P.W.I8, came to the spot at 8.00 p.m., and it appears that till about 9.00 p.m., no effort was made by the police to stop the assault on the deceased. The flat of the accused!deceased was broken open at about 9.00 p.m. and this timing appears to be correct since the deceased was taken to Cottage Hospital at Chicalim and was examined there at 9.15 p.m. Even prior to the arrival of Shri. Banaulikar P.W.I8, PSI Corte/P.W.15 and PSI Bhanudas Dessai/P.W.16 had reached the scene after they got the information at about 7.20 p.m. Anthony P.W.I. stated that when he saw the accused at about 6.00 p.m., on the first floor of his house, he asked him as to why there was noise and the accused started giving him bad words and he too abused the accused and within two seconds or so, the accused brought two or three soda bottles and threw the same on him which fell and broke near his legs. He also stated that the moth