Judgment K.J. Thaker, J.—This appeal is filed against the judgment and order dated 20.08.2011 passed in Sessions Case No. 61/2010 by the learned Addl. Sessions Judge, City Civil and Sessions Court, Ahmedabad City whereby, the appellant, original Accused No. 1, has been convicted for the offences punishable under Sections 302 and 294(B) of Indian Penal Code (for short, “the IPC”) and Section 135 of Bombay Police Act. For conviction under Section 302, IPC, the appellant has been sentenced for life and fine of Rs. 5,000/- and in default, SI for a further period of one year. Whereas, for conviction under Section 294(B), IPC, he has been sentenced to undergo SI for two months and fine of Rs. 500/- and in default, SI for a further period of seven days. For conviction under Section 135, BP Act, the accused was ordered to pay fine of Rs. 50/-. All the above sentences were ordered to run concurrently. The sentence already undergone by accused was given set-off. 2. The facts in brief are as under; Vijayadevi, the complainant herein and wife of Bholaprasad Durjanprasad Varma, was residing along with her husband and children in the area known as Ramnagar-Bhilwada, Amraiwadi, Ahmedabad. The appellant herein was also residing in the same locality along with his family. On 14.08.2009 at around 2230 hrs. Bholaprasad Varma, the husband of complainant, returned home and parked his auto-rickshaw in front of the house. During that time, the appellant came out of his house and questioned him as to why he was parking the vehicle at that place. An altercation took place between the two and the appellant got enraged. On hearing the shouts, the complainant and other members rushed to the place. The appellant, who was carrying a sword with him, inflicted a sword blow on the head of Bholaprasad. When the complainant intervened, the appellant inflicted kick and fist blows on her also. As the husband of complainant had sustained severe injuries, he was rushed to the Hospital. However, during the course of treatment, he expired. 2.1 A complaint in connection with the above incident was lodged with Amraiwadi Police Station vide I-C.R. No. 122/2009 and necessary investigation was carried out. As prima facie evidence was found against the appellant, he was arrested. As the husband of complainant had sustained severe injuries, he was rushed to the Hospital. However, during the course of treatment, he expired. 2.1 A complaint in connection with the above incident was lodged with Amraiwadi Police Station vide I-C.R. No. 122/2009 and necessary investigation was carried out. As prima facie evidence was found against the appellant, he was arrested. At the end of investigation, chargesheet was filed against accused before the concerned magisterial Court but, being a sessions triable offence, the case was committed to Sessions Court for adjudication on merits. 2.2 During the trial, the prosecution examined fifteen witnesses; Prose. Name of Witness Exhibit No. Witness No. 1. Vidhyadevi Bholaprasad Varma 15 2. Vijayalaxmi Bholaprasad Varma 17 3. Dr. Tapan Jitendrabhai Mehta 20 4. Dineshkumar Jokhanlal Pandey 22 5. Ghanshyamlal Varma 28 6. Pansinh Amarsinh Pal 31 7. Pappubhai Subedarsinh Rajput 35 8. Jaswantsinh Lodhi 36 9. Saraswatiben Bholaprasad Varma 37 10. Ramashrey Anokhelal Rajput 38 11. Narendra Ramprakash Lodhi 39 12. Ramachal Nakchedbhai Raidas 41 13. Prakashsinh Laxmansinh Rathod 42 14. Manuji Khatuji Ninema 44 15. Becharbhai Raichandbhai Patel 46 2.3 The prosecution had relied upon documentary evidence being complaint Exh. 16, Post mortem report Exh. 21, panchnama of physical condition of accused Exh. 23, slip of muddamal Exh. 24 to 27, 30 & 33, discovery panchnama Exh. 29, panchnama of scene of offence Exh. 32, inquest panchnama Exh. 34, certified copy of extract of Station diary Exh. 43, report of IO Exh. 45, FSL Report of scene of offence Exh. 47, xerox copy of injury certificate of accused No. 1 Exh. 48, injury certificate of Accused No. 2, forwarding letter Exh. 50, Receipt issued by FSL Exh. 51, FSL and Serology Report Exh. 52 and Notification Exh. 53. 2.4 At the end of trial, the Court below recorded further statement of accused under Section 313, CrPC and ultimately, passed the impugned judgment and order, which has led to the filing of present appeal. 3. Mr. Barot learned Counsel for the appellant submitted that the Court below has not appreciated the evidence on record in its proper perspective. He submitted that only interested and related witnesses were examined, who would naturally support the prosecution story. No independent witnesses were examined. Therefore, the Court below ought not to have recorded conviction relying on their evidence. 3.1 In the alternative, learned Counsel Mr. He submitted that only interested and related witnesses were examined, who would naturally support the prosecution story. No independent witnesses were examined. Therefore, the Court below ought not to have recorded conviction relying on their evidence. 3.1 In the alternative, learned Counsel Mr. Barot submitted that appellant had sustained injuries in the said incident, which clearly shows that it was an act of self-defence on the part of appellant. Therefore, at the most, the conviction of appellant would fall under Section 304 Part-II, IPC. 4. Learned APP supported the impugned judgment and submitted that the Court below has rightly convicted the appellant under Section 302, IPC. She submitted that the evidence of Vidhyadevi Bholaprasad Varma (PW-1) and Vijayalaxmi Bholaprasad Varma (PW-2), who are eye-witness, prove the guilt of appellant beyond doubt. Hence, this Court may not disturb the conviction recorded by the Court below. 5. We have heard learned Counsel for both sides and have perused the oral as well as documentary evidence and have also gone through the impugned judgment rendered by the Court below. 6. Before we advert to decide whether the appellant is guilty of the offence alleged or not, we shall first ascertain whether deceased died a homicidal death or not. To prove the same, the prosecution has placed reliance upon the medical evidence on record in the form of Postmortem report (Exh.21) and testimony of Dr. Tapan Jitendrabhai Mehta (Pw-3). In Column No. 17 of the report, the following external injuries were found on the dead body during autopsy; “(1) A tracheotomy wound present on front of mid of lower part of neck of 1.5cm x 2cm size tracheal lumen deep. (2) A surgically stitched wound, present (oraniectromy wound) on the left side of head, which starts from 8 cm above mid of left eyebrow going curvilinear and terminating just front of left ear, which is 25cm x 0.75cm size, with well opposed margins, on opening it, is brain tissue deep. (3) A surgically stitched wound present on 10cm above the mid part of right eyebrow, on right parietal region, mid part, 7cm x 0.75cm size, with well opposed margins, on opening it, is bone tissue deep, oblique. (3) A surgically stitched wound present on 10cm above the mid part of right eyebrow, on right parietal region, mid part, 7cm x 0.75cm size, with well opposed margins, on opening it, is bone tissue deep, oblique. (4) A surgically stitched wound present on mid part of head, parietal region, 15 cm above the glabella, 1.5cm x 0.5cm size, with well opposed margins, scalp tissue deep.” 6.1 The Doctor (PW-3) who performed the autopsy has categorically opined that the injuries sustained by deceased were ante-mortem and possible with the muddamal weapon – sword. The cause of death has been stated as shock due to head injury. Considering the medical evidence discussed herein above, it is established beyond doubt that deceased died a homicidal death. 7. The prosecution has placed heavy reliance upon the testimonies of Vidhyadevi Bholaprasad Varma (PW-1), Vijayalaxmi Bholaprasad Varma (PW- 2), Saraswatiben Bholaprasad Varma (PW-9), Narendra Ramprakash Lodhi (PW-11), Pappubhai Subedarsinh Rajput (PW-7) and Ramachal Nakchedbhai Raidas (PW-12), who have been cited as eye-witness. 8. We shall now examine the testimony of complainant, Vidhyadevi Bholaprasad Varma (PW-1), to ascertain the extent to which her evidence supports the prosecution case. Having carefully gone through her evidence, we find that she is an eye-witness to the incident. It has come out from her cross-examination that she witnessed the appellant inflicting a sword blow on the head of her deceased-husband and when she intervened, she was given fist blows by original Accused No. 2. 8.1 It is true that there is a minor omission regarding the place where complainant was present at the time when offence came to be committed. However, in our opinion, such minor omission would not be detrimental to the prosecution case since her evidence is consistent insofar as presence and role played by Appellant-Accused No. 1 is concerned. Therefore, we believe that complainant (PW-1) is an eye-witness to the incident and her testimony completely supports the prosecution case. 9. We find that the testimonies of the two daughters of complainant, viz. Vijayalaxmi Bholaprasad Varma (PW-2) and Saraswatiben Bholaprasad Varma (PW-9) corroborates the testimony of complainant (PW-1). Both the above witnesses are also eye-witness to the incident. It is true that there are certain contradictions and omissions in their evidence. However, on all material aspects of the case, their evidence supports the prosecution story. Their evidence proves the presence and role played by the appellant. Both the above witnesses are also eye-witness to the incident. It is true that there are certain contradictions and omissions in their evidence. However, on all material aspects of the case, their evidence supports the prosecution story. Their evidence proves the presence and role played by the appellant. Their presence at the scene of offence is natural since they are the daughters of deceased. Hence, their evidence also supports the prosecution case. 10. The prosecution case also gets supports from the testimonies of Narendra Ramprakash Lodhi (PW- 11), Pappubhai Subedarsinh Rajput (PW-7) and Ramachal Nakchedbhai Raidas (PW-12). These three witnesses are independent witnesses and not related to the family of deceased. The appellant was also residing in the same locality. Therefore, though the incident occurred during night hours, there does not remain any question of mis-identity. 11. Considering the totality of facts and the evidence on record, we are convinced that the Court below has rightly convicted the appellant under Section 302 IPC since the blow was inflicted with the intention and knowledge that it would cause death of deceased. The fact that blow was inflicted with a deadly weapon like sword and that to on vital part of the body, being the head, it proves that appellant was well within the knowledge that his act would cause death of deceased. Further, it has come on record that the appellant was literate and was serving as a Teacher. 12. In this context, it would be relevant to refer a recent decision of Apex Court in Som Raj @ Soma vs. State of H.P., AIR 2013 SC 1649 . In that case, the accused therein picked up ‘darat’, which is an agricultural implement used for cutting tress and also by butchers for beheading goats and struck blow with ferocity on back side of head of deceased, resulting in cutting through skull of deceased. The accused, when caught by witness, was in process of inflicting second blow on deceased. It was held that culpability of accused cannot be determined by assuming that he had inflicted only one injury on head and that injury inflicted by accused was imminently dangerous and would, in all probability, cause death of deceased and therefore, conviction of accused under Section 302, IPC was proper. It was held that culpability of accused cannot be determined by assuming that he had inflicted only one injury on head and that injury inflicted by accused was imminently dangerous and would, in all probability, cause death of deceased and therefore, conviction of accused under Section 302, IPC was proper. The facts in this case are similar and looking to the ferocity with which the sword blow was inflicted, which caused death of deceased, we are of the opinion that appellant’s conviction under Section 302, IPC is proper, legal and appropriate. 13. Insofar as offence under Section 294(B), IPC is concerned, we find that necessary ingredients to attract the penal provision of Section 294(B), IPC are not present in this case. The prosecution has failed to prove that offence under Section 294(B), IPC was committed by the appellant. Hence, the conviction and sentence under Section 294(B), IPC deserves to be quashed and set aside. However, the offence under Section 135, BP Act is made out since the appellant was in clear breach of the Notification of District Magistrate. Hence, his conviction and sentence under Section 135, BP Act is sustained. 14. For the foregoing reasons, the appeal is partly allowed. The impugned judgment and order passed in Sessions Case No. 61/2010 dated 20.08.2011 is modified to the extent that conviction and sentence imposed upon the appellant, original Accused No. 1, for offences punishable under Section 302, IPC and Section 135, BP Act stands confirmed, whereas, his conviction and sentence for offence under Section 294(B), IPC is quashed and set aside. Rest of the impugned judgment remains unaltered. R & P be sent back forthwith.