JUDGMENT : Jayant Patel, J. The present appeal is directed against the judgment and order passed by the learned Sessions Judge in Sessions Case No.55/05, whereby the learned Sessions Judge has convicted the appellant-original accused for the offence under section 302 of IPC and has imposed sentence of life imprisonment with the fine of Rs.3000/- and 3 months SI in default of fine. 2. As per the prosecution case, complaint, exhibit 27, was filed by Sitaben, p.w.7 with Dabhoi Police Station stating about the family background and the dispute arisen between her family members and her brother-in-law (accused) because of the re-division of the agricultural land of their forefathers. In the said complaint, it was stated by her that at about 7.00 clock in the evening, when she was cleaning the utensils after taking dinner, her younger son Dharmendra (deceased) was sitting in the yard (veranda) and her elder son Raju was inside the house, at that time, at about 7.30 pm, her brother-in-law Chandrakant Chaganbhai Vasava (accused) came abusing with the axe in his hand and he started saying that due to her, he had to surrender good panthiyari (joint) land having canal facility and he started abusing and at that time, the deceased told him that they have received lesser area of the land, but accused got excited and told that because of the son of the widow (herself), he had to give the share and therefore, why should he be kept alive and therefore, with a view to kill him, he gave an axe blow on the backside of the head near left ear and on account of the said blow, the deceased had fallen down and there was lot of bleeding. At that time, she came near to the deceased and took the head of the deceased in her lap and at that stage, the appellant-original accused also caused injury on her left elbow. Thereafter, she started shouting. At that time, her elder son Raju and other persons staying in the nearby area came running. Thereafter, the complaint was registered. 3. The police investigated into the complaint and ultimately, as sufficient evidence was found, the charge-sheet was filed and thereafter, the case was committed to the court of the learned Sessions Judge. Thereafter, she started shouting. At that time, her elder son Raju and other persons staying in the nearby area came running. Thereafter, the complaint was registered. 3. The police investigated into the complaint and ultimately, as sufficient evidence was found, the charge-sheet was filed and thereafter, the case was committed to the court of the learned Sessions Judge. Thereafter, charge was framed by the learned Sessions Judge against the accused for the offence under section 302 and section 324 and 504 of IPC read with section 134 of the Bombay Police Act. 4. The prosecution in order to prove the guilt of the accused, examined 26 witnesses whose details are mentioned by the learned Sessions Judge at paragraph 3 of the impugned judgment. The prosecution produced 25 documentary evidence, details of which are also mentioned by the learned Sessions Judge at paragraph 4 of the judgment. 5. The learned Sessions Judge, thereafter recorded the statement of the accused under 313 of the Cr.P.C. and in the further statement, the accused denied evidence against him and stated that he is innocent and false case is filed against him. 6. The learned Sessions Judge thereafter, heard the prosecution as well as defence and the learned Sessions Judge ultimately found the accused guilty for the offence under section 302 of IPC. The learned Sessions Judge thereafter, heard the accused on the aspect of sentence and ultimately, imposed the sentence as referred to herein above. Under the circumstances, the present appeal before this Court. 7. Both the sides have taken us to the entire evidence, oral as well as documentary and we have also considered the judgment and the reasons recorded by the learned Sessions Judge. We have heard the learned counsel Ms.Sadhna Sagar for the appellant and Mr.Pandya, learned APP for the State. 8. It appears to us that the case is such were there is eye witness to the incident Sitaben, P.W.7, exhibit 26. We have heard the learned counsel Ms.Sadhna Sagar for the appellant and Mr.Pandya, learned APP for the State. 8. It appears to us that the case is such were there is eye witness to the incident Sitaben, P.W.7, exhibit 26. In her testimony, she has stood by the accusation made in the complaint and she has stated that when the deceased was sitting on the otla and she was sitting in front of him for cleaning utensils, the accused had come and had given the axe blow on the backside of the head of her son and he had fallen down and she took his head on her lap and there was bleeding on the head of the deceased and she had also sustained injuries since she came in between and thereafter, the accused had left. The pertinent aspect is that she is not only the eye witness to the incident, but she is also the injured witness. She has identified the axe which was used and stated that the same was in the hand of the accused and she has also identified her clothes. The defence has not been able to contradict the aforesaid part of her testimony in the examination in chief. Therefore, the said eye witness Sitaben, P.W.7 who is also the injured witness has fully supported the case of the prosecution for the blow given by accused of the axe on the backside of the head of the deceased. 9. The medical evidence of Doctor Dilip Vora, p.w. 20, exh.43, who had treated the deceased at the initial period supports the case of the prosecution on the aspect of causing injury on the backside of the head of the deceased and there was also co-relation with the medical history supporting the case of the prosecution. The evidence of the Doctor Kishorbhai Promodrai Desai, P.W.21, exhibit 47 who performed post mortem of the body of the deceased fully supports the case of the prosecution. He has described the injury on the backside of the head and as per his opinion, the injury could be caused with the axe and he gave the opinion after he was shown the axe. The cause of death as per the opinion of the Doctor is on account of the injury which was caused on the head of the deceased. 10. The cause of death as per the opinion of the Doctor is on account of the injury which was caused on the head of the deceased. 10. The weapon axe which is stated to have been used for commission of the crime has been discovered at the instance of the accused and the discovery panchnama has come on record at exhibit 30. The axe was containing blood stain. Under the circumstances, that part of the evidence is supporting the case of the prosecution. It is true that the panchas of the said panchnama, Khushalbhai, p.w.9, exhibit 29 was declared hostile, but he has admitted the signature and the discovery is further supported by the evidence of I.O. Sureshkumar Joitaram Patel, p.w. 26, exhibit 60. The clothes were recovered of the accused and they were also sent to FSL. FSL report exhibit 54 fully supports the case of the prosecution inasmuch as the deceased had the blood group of “B”. The bloodstains found on the axe were of “B” group and the same stains were found on the clothes of the accused. The bloodstains were also found on the clothes of Sitaben, P.W.7, the mother and the injured eyewitness and it was having the blood group as that of the deceased. Therefore, the prosecution has been able to prove all the aforesaid aspects and the material evidence for the guilt of the accused for commission of homicidal death of the deceased with the weapon axe. 11. We may state that for causing injury to Sitaben, p.w.7, since she came in between when the accused was giving axe blow to the deceased, on account of the medical history given to Doctor Vora, p.w.20, exhibit 43 of the injury, the case is not believed by the learned Sessions Judge and therefore, the accused is already given benefit and he has been acquitted for the offence under section 324 and 504 of IPC. Further, as the notification under the Bombay Police Act was not produced, the benefit is also given to the accused and he has been acquitted for the offence under section 135 of the Bombay Police Act. Therefore, we are not required to examine the said aspect. 12. Further, as the notification under the Bombay Police Act was not produced, the benefit is also given to the accused and he has been acquitted for the offence under section 135 of the Bombay Police Act. Therefore, we are not required to examine the said aspect. 12. The learned counsel appearing for the appellant raised the first contention that the opinion given by Doctor Vora p.w. 20, exhibit 43 that as per him, the injury is caused by using the axe on the backside, if considered, it is apparent that the accused had no intention to kill and in her submission, it may also falsify the case of the prosecution to that extent and the benefit should go to the accused. 13. It is not a matter where there is no other medical evidence available which can be authentically relied upon for the injury caused and the use of the weapon. Doctor Kishor Promodrai, p.w. 25, exhibit 27, has stated that the postmortem was made by Doctor Ashok Mahajan and himself and he has clearly given opinion when axe was shown to him that with such axe, the injury could be caused. The said opinion was given after removal of the stitches and after examination of the inside portion of the skull. The size of the wound on the head as stated by the said witness was 3 X 0.5 c.m. and the depth of the wound was 3 c.m. Such deep injury of 3 c.m. on the head if considered with the opinion of the Doctor who performed the postmortem, it can be said that the opinion of the Dr. Kishore for injury caused with the axe is reliable. Therefore, the opinion expressed by Doctor Vora, p.w. 20 exhibit 43 in our view would neither frustrate the case of the prosecution nor any benefit as sought to be canvassed would be available to the accused. The pertinent aspect is that p.w.20 has not fully examined the depth of the wound nor the injury on the head in the manner as examined by the Doctors who performed the postmortem. Therefore, the contention raised by the learned counsel would be of no help to the appellant. 14. The pertinent aspect is that p.w.20 has not fully examined the depth of the wound nor the injury on the head in the manner as examined by the Doctors who performed the postmortem. Therefore, the contention raised by the learned counsel would be of no help to the appellant. 14. The learned counsel next contended that as per the deposition of Sitaben, p.w.7, exhibit 26, in cross examination, she has stated that the deceased was first taken to Dabhoi Police Station and thereafter, was taken to the Government dispensary at Dabhoi. Had the deceased first taken to the Government dispensary at Dabhoi instead of police station, the deceased would have survived. She therefore submitted that if any laxity is given in the treatment, or delay in treatment has been caused by the complainant and her relatives, benefit would be available to the accused. 15. In our view, such aspect even if considered for the sake of examination would not carry the case of the accused further for getting any extra benefit therefrom. As per the prosecution case, after he was carried to Dabhoi dispensary, the Doctor himself found it proper to refer the deceased to SSG hospital and at SSG hospital, deceased survived for a short period and he succumbed to the injuries. Further, the nature of injury and the gravity was very high. Under these circumstances, such contention in no manner would frustrate the case of the prosecution for proving the guilt of the accused under section 302 of the IPC. 16. The learned counsel lastly contended that it was a case of sudden provocation and there was no intention on the part of the accused to kill the deceased. She submitted that had the intention of the accused was to kill the deceased, the blow could be more than one and further as per the evidence of the IO, it was found by him that some quarrel was reported coupled with the police vardhi recorded for quarrel and she also submitted that the eye witness Sitaben, PW 7 has also stated about the quarrel (“bolachali”). Therefore, the possibilities of sudden provocation at the incident could not be ruled out. Therefore, the possibilities of sudden provocation at the incident could not be ruled out. She submitted that any doubt arisen for proving the case of the prosecution, the accused would be entitled to the benefit and therefore, this Court may consider the aspects of treating the case as falling under section 304 part I and the conviction imposed be altered appropriately. 17. We may state that it was not the defence of the accused at any point of time during the trial that the incident was on account of sudden provocation nor any question was put in that manner to the prosecution witnesses. It is true that Sitaben, p.w. 7 in her cross examination stated that there was “bolachali” but such cannot be termed as quarrel as sought to be canvassed by the learned counsel. If the word “bolachali” is understood in normal parlance it would mean the exchange of words. Further in the complaint also she has stated that the accused came abusing by stating that he had to surrender the joint property of the land having canal facility and the deceased did say that they have received less area and the accused thereafter got excited by saying that as he had to give the share of the land to the son of the widow, why should he (deceased) be kept alive. Such in our view cannot be said as a sudden provocation leading to the incident as sought to be canvassed. If “bolachali” or exchange of words is considered as sudden provocation, possibly in every case, the culprit would be entitled to the benefit of section 304 part-I. The same can neither be the intention of the parliament nor can it be considered to dilute the deterrent effect to be given by the Court when it is a case of offence proved under section 302 of IPC. One can rather say that it would depend upon the facts and circumstances and the degree of provocation whether could be said as by way of a natural conduct or otherwise. If the facts of the present case are considered, it may be that the accused had to surrender and share the joint family property of agricultural land, but such cannot be considered as a ground for entitling the benefit of section 304 Part-I of sudden provocation. If the facts of the present case are considered, it may be that the accused had to surrender and share the joint family property of agricultural land, but such cannot be considered as a ground for entitling the benefit of section 304 Part-I of sudden provocation. Further, it was not the case of any fight or altercation between the deceased and the accused. On the contrary, the deceased was sitting on the corner of otta in the yard where in his front, his mother was cleaning utensils and at that stage, the accused comes with the axe and gives blow on the backside of the head which is a vital part of the body of the deceased and in normal course, single severe blow on the head would be fatal. The axe is used in a manner causing deep injury on the head and as stated by Sitaben, pw.7, with one blow of the axe, deceased had fallen down and bleeding was like a fountain. Under these circumstances, we are not inclined to consider that the incident could be said as having arisen on account of the sudden provocation entitling the accused to get the benefit of section 304 part I of IPC. It is not that in every case when second blow is not given by the accused, it would be a case for sudden provocation or that one can gather that there was no intention to kill. If a person was sitting and from the backside, if the accused has come and has given blow on the head by using the weapon on the sharpened side, causing deep injury on the head and one blow results into the situation that the deceased is completely fallen down with the bleeding like fountain, it cannot be said that there was no intention to kill the deceased as sought to be canvassed by the learned counsel for the appellant. Under these circumstances, the contention raised cannot be accepted. 18. In view of the aforesaid, we find that the ultimate decision taken by the learned Sessions Judge for finding the accused guilty for the offence under section 302 of IPC and imposition of sentence upon him do not deserve to be interfered with. 19. Hence, the appeal is meritless and therefore, dismissed. Appeal dismissed.