JUDGMENT : RAKESH SAKSENA, J. 1. Appellant has filed this appeal against the judgment dated 7th May, 2007 passed by Sessions Judge, Harda in Sessions Trial No. 24/2006, convicting the appellant under sections 302 and 294 of the Indian Penal Code and sentencing him to imprisonment for life with fine of Rs. 3000/- and rigorous imprisonment for three months with fine of Rs. 500/- on each count respectively with default stipulation. 2. In short, the prosecution case is that on 18-1-2006, at about 1.30 P.M. while Pawan Kumar and Sher Singh (deceased) were sitting and talking in the chowk of village Nahali Kala, appellant came near them and for no reason abused them. When they asked him to refrain from abusing, he went to his house and came back with an axe and dealt its blow on the head of Sher Singh and also slapped him on the back twice. Blood oozed out from the wound. Incident was witnessed by Pawan Kumar (PW-5), father Ajab Singh (PW-1), Hukum Singh (DW-1) and some other persons of the village. Ajab Singh and Hukum Singh carried Sher Singh to Police Station, where Sher Singh lodged first information report Ex.P/17. While he was being taken to hospital for treatment, he died. 3. On receiving merg report Ex.P/1, offence was converted into one under section 302 of the Indian Penal Code. Dead body of deceased was sent for post-mortem examination to Community Health Centre, Khirkiya. 4. During investigation, Station Officer of Police Station, Chhepawad conducted inquest, recorded inquest memorandum Ex.P/3, drew spot map, arrested appellant on 21-1-2006 vide arrest memorandum Ex.P/19, and recovered an axe on the information given by appellant. After concluding investigation, he filed charge-sheet in the Court of Magistrate. The case was thereafter, committed for trial. 5. Learned Sessions Judge framed charges under sections 294 and 302 of the Indian Penal Code. Appellant abjured his guilt and submitted his written statement under section 233 of the Code of Criminal Procedure. According to him, when he asked deceased and Pawan not to sit near the house of a girl viz. Varsha and tease her, Ajab Singh, the father of deceased abused him and called deceased and Pawan, who came there armed with stick and axe and assaulted him. When he tried to defend himself, injury was caused to deceased. Though, he went to police to lodge report, but his report was not recorded. Varsha and tease her, Ajab Singh, the father of deceased abused him and called deceased and Pawan, who came there armed with stick and axe and assaulted him. When he tried to defend himself, injury was caused to deceased. Though, he went to police to lodge report, but his report was not recorded. He also examined Hukum Singh (DW-1) in his defence. 6. Upon trial, after appreciation of evidence, learned Sessions Judge held appellant guilty, convicted and sentenced him as mentioned above. Aggrieved by his conviction and sentence, appellant has filed the present appeal on the ground that the evidence of eye witnesses was not reliable being inconsistent and contradictory. Witnesses were close relatives of deceased. Learned Sessions Judge committed error in not holding that the incident was sudden and the injury was caused to deceased without premeditation on the spur of moment. Since, it was a case of single blow, his conviction under section 302 of the Indian Penal Code was not justified. Learned counsel for the appellant submitted that at the most, appellant could have been held liable under section 304-I or II of the Indian Penal Code. Per contra, learned counsel for the State submitted that the evidence of eye witnesses was reliable and the learned Sessions Judge committed no error in convicting the appellant under section 302 of the Indian Penal Code. According to him, no interference was called for in the impugned judgment of conviction. 7. We have heard the learned counsel for the parties and perused the impugned judgment and the evidence on record carefully. 8. It has not been disputed that deceased died of homicidal death. From the evidence of Ajab Singh (PW-1) and Pawan Kumar (PW-5), it has been proved that deceased suffered injury with axe on his head. As a result of injury, he died. First Information Report Ex.P/17 was recorded by Head Constable Noor Mohammad (PW-10) and deceased was sent to Community Health Centre, Khirkiya for M.L.C. examination. Dr. Rajendra Onkar (PW-8) examined him and found one incised wound 2.5” x 1” x bone deep on the left side of the parietal region of his skull. He referred deceased for X-ray examination. This injury, in his opinion, was possible by some sharp edged weapon. He recorded injury report Ex.P/11 and signed it. On the same night, when deceased died, inquest proceedings were conducted by Investigating Officer P.S. Thakur (PW-9). He referred deceased for X-ray examination. This injury, in his opinion, was possible by some sharp edged weapon. He recorded injury report Ex.P/11 and signed it. On the same night, when deceased died, inquest proceedings were conducted by Investigating Officer P.S. Thakur (PW-9). He recorded memorandum Ex.P/3, in presence of witnesses and referred the dead body of deceased for post-mortem examination. Dr. Rajendra Onkar (PW-8) conducted post-mortem examination and found one incised wound 3” x 1” x bone deep on the left side of the skull of deceased. Left side of the parietal bone was fractured. Injury was caused by sharp edged weapon. In his opinion, deceased died of coma resulting from the head injury and that his death was homicidal. Post-mortem examination report Ex.P/14 was recorded and signed by him. He also examined axe sent to him by the police. Vide his query report Ex.P/15 he opined that injury on the head of deceased could have been caused by the said axe. From the aforesaid evidence, it stood amply established that deceased died due to incised injury caused on his head and that his death was homicidal in nature. 9. Now, it has to be seen whether appellant caused injury to deceased which resulted to his death. 10. Prosecution examined Ajab Singh (PW-1), Lalu Prasad (PW-2), Radhika (PW-3), Pawan Kumar (PW-5) and Anokhilal (PW-6) as eye witnesses of the occurrence. Though, PW-2, PW-3 and PW-6 deposed in the Court that they saw appellant assaulting deceased with axe, but the learned Sessions Judge did not enter into appreciation of their evidence since he found evidence of Ajab Singh (PW-1) and Pawan Kumar (PW-5) reliable beyond any doubt. 11. Learned counsel for the appellant submitted that Ajab Singh (PW-1) and Pawan Kumar (PW-5) were respectively the father and cousin brother of deceased, therefore, their evidence was not reliable. We are unable to accept the submission made by learned counsel for the appellant. It has been settled by the Apex Court in number of decisions that merely on the ground that an eye witness happened to be a relative, his evidence cannot be discarded. In case of Shyam Babu vs. State of U.P. 2012 Cri. We are unable to accept the submission made by learned counsel for the appellant. It has been settled by the Apex Court in number of decisions that merely on the ground that an eye witness happened to be a relative, his evidence cannot be discarded. In case of Shyam Babu vs. State of U.P. 2012 Cri. L.J. 4550, the Apex Court observed: “Where the presence of the eye witnesses is proved to be natural and their statements are nothing but truthful disclosure of actual facts leading to the occurrence, it will not be permissible for the Court to discard the statement of such related or friendly witnesses. There is no bar in law on examining family members or any other person as witnesses.....If the statement of witnesses, who are relatives or known to the parties affected is credible, reliable, trustworthy and corroborated by other witnesses, there would hardly be any reason for the Court to reject such evidence merely on the ground that the witness was a family member or an interested witness or a person known to the affected party or friend etc.” 12. Ajab Singh (PW-1), the father of deceased deposed that at about 1.30 P.M. when he and Hukum Singh (DW-1) were sitting at the shop of Shanker Patil and deceased and Pawan (PW-5) were sitting under a tree near the house of Sharda Bai, appellant reached there and abused them, whereupon they remonstrated him. Appellant asked them to stay there and went to his house. Deceased and Pawan Kumar also went to their house. After some time, appellant came back with an axe and started hurling abuses, though deceased and Pawan were not present at that place. He (PW-1) and Hukum Singh (DW-1) went near appellant and questioned him why he was abusing. When appellant told that deceased abused him, he called deceased. When deceased denied of having abused appellant, appellant dealt a blow of axe on his head and ran away. 13. Pawan Kumar (PW-5), cousin of deceased reiterated the same story. He deposed that appellant abused them while they were sitting under a Neem tree near the house of Sharda Bai. When they asked him not to abuse, he went to his house. They also went to their house, but after sometime, he again came at the spot and hurled abuses. Pawan Kumar (PW-5), cousin of deceased reiterated the same story. He deposed that appellant abused them while they were sitting under a Neem tree near the house of Sharda Bai. When they asked him not to abuse, he went to his house. They also went to their house, but after sometime, he again came at the spot and hurled abuses. On asking of Ajab Singh (PW-1), when he and deceased went there, appellant dealt a blow of axe on the head of deceased, as a result of which, he fell down and blood started oozing out of his head. 14. Both of these witnesses were subjected to a rigorous cross-examination, but nothing could be pointed out which may in any manner discredit their testimony. Evidence of aforesaid witnesses regarding the occurrence and the manner in which the assault was made by the appellant remained consistent. 15. Lalu Prasad (PW-2) corroborated the evidence of Ajab Singh by deposing that as soon as after hearing the cries he reached the spot, he saw deceased lying in the injured condition. There was an injury on his head. He tied his towel on his head. According to him, Ajab Singh, who was present there told to him that appellant assaulted deceased. It was this witness, who carried deceased to hospital on his motorcycle. 16. Although, Radhika (PW-3) and Anokhilal (PW-6) also deposed that they saw appellant assaulting deceased with axe, but their police statements were recorded on 27-2-2006 i.e. about 39 days after the occurrence. Learned Sessions Judge, might be, for this reason, ignored their evidence from consideration. 17. Evidence of Ajab Singh (PW-1) and Pawan Kumar (PW-5) finds corroboration from the evidence of Dr. Rajendra Onkar (PW-8), who found one injury on the head of deceased caused by sharp edged weapon. Axe, the weapon of offence, was recovered on the information given by appellant from his house by Investigating Officer P.S. Thakur (PW-9). Evidence of Investigating Officer in this regard stood corroborated from the evidence of Mahendra Singh (PW-7). According to F.S.L. report Ex.P/24, human blood was found on the said axe. 18. As far as the evidence of Hukum Singh (DW-1) is concerned, he deposed that appellant assaulted deceased with axe, but he narrated the incident in a different manner. He deposed that appellant admonished deceased and Pawan for their sitting at the closed shop of Shiv Kumar Pandit. 18. As far as the evidence of Hukum Singh (DW-1) is concerned, he deposed that appellant assaulted deceased with axe, but he narrated the incident in a different manner. He deposed that appellant admonished deceased and Pawan for their sitting at the closed shop of Shiv Kumar Pandit. According to him, Varsha, the daughter of Shiv Kumar Pandit complained to appellant about teasing her by deceased and Pawan. On deceased's opposition, there occurred a hot exchange of talks, then both of them went away. After about 15 minutes, when appellant came out of his house, Ajab Singh met him on way and asked him as to why he asked his son not to sit there. In the course of talks, Ajab Singh called deceased, who along with Pawan reached there with axe and stick. Deceased, Pawan and Ajab Singh kept the axe down and started beating appellant with hands and legs. When Pawan picked up axe, appellant snatched it from his hand and whirled it and dealt its blow on the head of deceased and ran away. In the written statement submitted by appellant under section 233 of the Code of Criminal Procedure, he stated that during altercation, deceased and Pawan came armed with axe and surrounded him. In the scuffle, when Ajab Singh exhorted Pawan to kill him, he defended himself in which deceased suffered injury. According to him, he went to police station on the same day for lodging report, but his report was not recorded and he was made to sit at police station. 19. Evidence of Hukum Singh (DW-1) as well as the statement of accused seems unnatural. It appears improbable that when deceased and Pawan would come armed with axe, they would let appellant go unhurt. It is though stated that appellant also suffered injury and went to police station, but it has been firmly denied by Investigating Officer P.S. Thakur (PW-9) that appellant came to police station on the same day and he made him to sit there till 21-1-2006. If injuries would have been found on the body of appellant, he would have certainly been sent for medical examination. The defence advanced by the appellant seems false. It rather supports the prosecution version that appellant caused axe injury on the head of deceased, which resulted into his death. 20. If injuries would have been found on the body of appellant, he would have certainly been sent for medical examination. The defence advanced by the appellant seems false. It rather supports the prosecution version that appellant caused axe injury on the head of deceased, which resulted into his death. 20. In our opinion, the appreciation of evidence done by the learned Sessions Judge is sound, correct and proper. Evidence of Ajab Singh (PW-1) and Pawan Kumar (PW-5) regarding the occurrence and the manner of assault is cogent, consistent and seems to us trustworthy. Their evidence remained unshaken in cross-examination and nothing appeared therein to discredit their testimony. Evidence of these witnesses coupled with the recovery of axe from appellant and the medical evidence given by Dr. Rajendra Onkar (PW-8) unmistakably indicates that appellant committed the crime i.e. assaulted deceased with axe which resulted in his death. 21. Learned counsel for the appellant next submitted that the incident occurred in a sudden quarrel and without premeditation, therefore, the conviction of appellant under section 302 of the Indian Penal Code was not justified. He placed reliance on the law laid down by the Apex Court in Mahesh vs. State of Madhya Pradesh, AIR 1996 SC 3513 , Ram Prakash Singh vs. State of Bihar, AIR 1998 SC 1190 and Masumsha Hasanasha Musalman vs. State of Maharashtra, AIR 2000 SC 1876 . The ratio of all these decisions is that when the incident occurred in a sudden quarrel without premeditation and accused gave a single blow and did not act in cruel or unusual manner, the case of accused would attract Exception 4 to section 300 of the Indian Penal Code. In case of Mahesh (supra) there was no premeditation for the assault. At the spot there was altercation between the parties and in the sudden fight, after the deceased objected to the grazing of the cattle, when possibly hot words or even abuses were exchanged between the parties, the appellant gave a single blow with the pharsa on the head of the deceased. It appeared that appellant assaulted deceased in that sudden fight and after giving him one blow took to his heals. He did not cause any other injury to deceased and therefore, it could not be said that he acted in any cruel or unusual manner. It appeared that appellant assaulted deceased in that sudden fight and after giving him one blow took to his heals. He did not cause any other injury to deceased and therefore, it could not be said that he acted in any cruel or unusual manner. This, as held by the Apex Court, fortified the belief that the assault on the deceased was made during a sudden quarrel without any premeditation. As such Exception 4 to section 300 of the Indian Penal Code was attracted. On examining the fact situation of the instant case, we find that the incident occurred suddenly when appellant admonished deceased and Pawan for their sitting at the shop of Shiv Kumar Pandit and teasing his daughter Varsha frequently in the past. It has also come in the evidence that after inflicting a single blow with axe on the head of deceased, appellant ran away instead of repeating the assault. In these circumstances, in view of the proposition of law enunciated by the Apex Court, we find that Exception 4 to section 300 of the Indian Penal Code was attracted and that trial Court committed error in holding appellant guilty under section 302 of the Indian Penal Code. Since the appellant used a deadly weapon and caused injury on the vital part of the body of deceased, i.e. head which resulted into his death, in our opinion, appellant, by his act clearly made himself liable to be punished under section 304-I of the Indian Penal Code. 22. From the evidence of eye witnesses, it is proved that appellant hurled filthy abuses to deceased and Pawan which caused annoyance to them, therefore the conviction and sentence of appellant under section 294 of the Indian Penal Code also deserves to be affirmed. 23. For the aforesaid reasons, the conviction of appellant under section 302 of the Indian Penal Code is modified to one under section 304-I of the Indian Penal Code and he is sentenced to rigorous imprisonment for seven years. His conviction and sentence under section 294 of the Indian Penal Code is affirmed. Appellant is reported to be in jail since 21-1-2006. If he has served out whole of his sentence, he be released forthwith if not required in any other case. 24. Appeal partly allowed.