JUDGMENT : K.J. THAKER, J. 1. By way of this appeal, the appellant, original accused, has challenged the judgment and order passed by the learned Additional Sessions Judge, Mehsana, in Sessions Case No.114/2009 dated 19.05.2010, whereby, the appellant herein, original accused, has been convicted for the offence punishable under section 302 of the Indian Penal Code (for short, “the IPC”) and under section 135 of the Bombay Police Act. For conviction under section 302 IPC, the appellant has been sentenced to undergo imprisonment for life and fine of Rs.1000/, in default of payment of fine, the appellant shall undergo further simple imprisonment for fifteen days. No separate sentence has been awarded for the offence punishable under section 135 of the Bombay Police Act. The appellant herein has been given the benefit of set off. 2. The facts in brief are that on 29.07.2009 at about 8:30 pm. there was a quarrel between the accused and the deceased Thakor Lalaji Chamaji with regard to the altercations occurred between them during a cricket match being played by them before few days. During the said quarrel, the appellant herein inflicted a scythe blow on the head of Thakor Lalji Chamaji. Thereafter, said Thakor Lalji Chamaji was taken to the hospital, where he was declared dead. In this connection a complaint was filed by the complainant Khodaji Belaji Thakor. 2.1. After necessary investigation was carried out, the appellants came to be arrested. On completion of investigation, chargesheet was filed before the appropriate Magisterial Court. Since the case was Sessions triable, it was committed to Sessions Court, Mehesana. The appellant herein pleaded not guilty and therefore, charge was framed and trial was initiated. 2.2. To prove the case against the present appellants, the prosecution had examined following witnesses: S. No. Name of the Witness Ex. No. 1 Dr. Kadabhai Madhabhai Bajania 6 2 Dr. Rameshkumar Maganbhai Shah 9 3 Devuji Pradhanji Thakor 13 4 Prahaladji Karshanji Thakor 15 5 Prahladsinh Zala 21 6 Bharatji Kunwarji Thakor 26 7 Khodaji Velaji Thakor 31 8 Govindji Babuji Thakor 33 9 Laxmanji Amraji Thakor 36 10 Kantiji Gambhirji Thakor 41 11 Maheshkumar Ramniklal Shah 45 12 Rajeshkumar Kantilal Patel 49 13 Karshanji Bhikhaji Thakor 51 14 Nayak Mahendrakumar Shankarji 52 15 Ganpatji Navuji Chavda 55 16 Vishnuji Gambhirji Thakor 60 17 Kritisingh Mohansingh Darvar 61 18 Bhupendrakumar Natwarlal Dave 63 2.3. The prosecution had also relied upon the following documentary evidences so as to bring home the charges against the appellant accused. S. No. Particulars Ex. No. 1 Inquest Panchnama 14 2 Original complaint 32 3 Panchnama of the physical condition of the accused 42 4 Post mortem note 11 5 Panchnama of place of offence 25 6 Panchnama of the cloths of the deceased 39 7 FSL report 73 8 Serological report 74 2.4. At the end of trial, the Court below recorded the further statement of the accused u/s. 313 of the Criminal Procedure Code and ultimately, passed the impugned judgment and order of conviction, which is under challenge in the present appeal. 3. After arguing the matter at length, learned counsel for the appellant submitted that he is not disputing the presence of the appellant, he is also not disputing the fact that the death of the deceased was a homicidal death, but relied on the postmortem note and contended that the appellant had inflicted only single blow upon the deceased and the offence in question had been occurred in the heat of the moment. He further contended that the appellant herein did not come with any intention of killing the deceased or assaulting him but when he was provoked, the incident in question, had happened. Therefore, he submitted that considering the aforesaid fact, this Court may consider the case of the present appellant under section 304 (Part I) or (part-II) of the IPC. 4. Learned APP appearing for the respondent State has submitted that the trial Court after appreciating the evidence on record has passed the impugned judgment. She further submitted that the trial Court has rightly passed the impugned order since there were ample direct and indirect evidences on record to connect the appellants with the crime. She relied upon the decision of the Apex Court in the case of Som Raj @ Soma Vs. State of H.P. reported in AIR 2013 SC 1649 . 5. Heard learned counsel for the respective parties and considered the documents forming part of the appeal as well as original record summoned from the trial Court. In this case, the prosecution has examined PW2Dr. Dr. Rameshkumar Maganbhai Shah at Exhibit9, who has conducted the postmortem of the dead body of the deceased. He has categorically stated that death was caused due to shock on account of head injury. In this case, the prosecution has examined PW2Dr. Dr. Rameshkumar Maganbhai Shah at Exhibit9, who has conducted the postmortem of the dead body of the deceased. He has categorically stated that death was caused due to shock on account of head injury. In column No.17 of the post mortem Note, the injuries described as under: “17. 1. LW ( 9 cm. x 1.5 cm. x Brain tissue deep) structures cut skin, subcutaneous tissue, (right) Parietal bone, left parietal bone, both angles curved shape, Hemorrhage. Subdural haematoma in right parietal region and extradural haemolma in mid line of parietal region. Mid point between eye brow (injury 15 cm. away).” 5.1. This witness further stated that the aforesaid injuries were sufficient to cause death in routine course. This witness has stated that the injury on the body of the deceased was possible by muddamal weapon. Thus, from the testimony of the above witness, we are of the view that the death of the deceased was a homicidal death. 6. In this case, the prosecution has examined P.W.13 Karshanji Bhikhaji Thakor at Exhibit-51. In his evidence, he stated that on the date of incident when he was in his shop, one Vijaji Kaluji came and informed him that the present appellant inflicted scythe blow on the deceased near the bridge of Narmada Canal. Thereafter, he along with Vijaji and Khodaji went to the place of offence and saw that the deceased was lying on the ground in a pool of blood. He further stated that on the scene of offence, one Mahendrabhai and Kirtisingh Mohansinh were also present. This witness further stated that when he asked the deceased as to who has injured him, the deceased replied that one Kunwarsangh @ Jenaji appellant herein inflicted scythe blow on his head because of quarrel occurred earlier between them during cricket match. This witness extensively cross-examined by the learned advocate for the defence, but nothing incriminating has been come out in the cross-examination of this witness to disbelieve his evidence. 7. P.W14 Nayak Mahendrakumar Shankarji has been examined vide Exhibit-52. In his evidence, he stated that he saw that there was a verbal altercation took place between the deceased and the appellant and suddenly the appellant inflicted scythe blow on the head of the deceased. Nothing incriminating has been come out in the cross-examination of this witness to disbelieve his evidence. 8. In his evidence, he stated that he saw that there was a verbal altercation took place between the deceased and the appellant and suddenly the appellant inflicted scythe blow on the head of the deceased. Nothing incriminating has been come out in the cross-examination of this witness to disbelieve his evidence. 8. The prosecution has also examined P.W.17 Kritisingh Mohansingh Darvar vide Exhibit-61. In his evidence, he stated that on the day of incident at about 8:30 pm. when he was going towards the village, he saw there was a scuffle between the deceased and the present appellant and at that time, the appellant herein was holding a scythe. During the scuffle, the appellant and the deceased fell on the floor and thereafter blood was oozing out from the head of the deceased. Thereafter, one Mahendrabhai called the ambulance and taken the deceased to the hospital. 9. The other prosecution witnesses have also supported the prosecution case, their evidence are perused by us but not reproduced. Apart from that, the FSL report also supports the prosecution case. 10. Considering the evidence of the witnesses, the prosecution has successfully proved the presence and involvement of the appellant in the crime and there is no doubt in our mind about the guilt of the accused. The accused and accused alone was the one who had committed the offence in question. However, the short question which falls for our consideration is whether, on reappraisal of the peculiar facts and circumstances of the case, the conviction of the appellant under Section 302 of the Indian Penal Code should be upheld or the conviction deserves to be converted under Section 304 PartI or Part-II of the Indian Penal Code as submitted by learned advocate for the appellant. It would be relevant to refer section 299 and Section 300 of the Indian Penal Code, which read as under: 299. Culpable homicide: Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. 300. Murder. Culpable homicide: Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. 300. Murder. Except in the cases hereinafter expected, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or 2ndly.If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or 3rdly.If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or 4thly.If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.” xxx xxx xxx xxx 304. Punishment for culpable homicide not amounting to murder: Whoever commits culpable homicide not amounting to murder shall be punished with [imprisonment for life],or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, Or With imprisonment of either description for a term which may extent to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.” 11. The Apex Court in its recent decision in the case Chenda @ Chanda Ram V. State of Chattisgarh, JT 2013 [12] SC 28, in paragraph No.15, the Apex Court made the following observations : “15. The Apex Court in its recent decision in the case Chenda @ Chanda Ram V. State of Chattisgarh, JT 2013 [12] SC 28, in paragraph No.15, the Apex Court made the following observations : “15. In Gurmukmh Singh V. State of Haryana [JT 2009 [11] SC 122: 2009 [15] SCC 635] after scanning all the previous decisions where the death was caused by a single blow, this Court indicated though not exhaustively, a few factors to be taken into consideration while awarding the sentence. To quote : “23. these are some factors which are required to be taken into consideration before awarding sentence to the accused. These factors are only illustrative in character and not exhaustive. Each case has to be seen from its special perspective. The relevant factors are as under: [a] Motive or previous enmity; [b] Whether the incident had taken place on the spur of the moment; [c] The intention/knowledge of the accuse while inflicted the blows or injury; [d] Whether the death ensure instantaneously or the victim died after several days; [e] The gravity, dimension and nature of injury; [f] The age and general health condition of the accused; [g] Whether the injury was caused without premeditation in a sudden fight; [h] The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted; [I] The criminal background and adverse history of the accused; [j] Whether the injury inflicted was not sufficient in the ordinary course of nature to cause death but the death was because of shock; [k] Number of other criminal case pending against the accused; [l] Incident occurred with the family members or close relations; [m] The conduct and behaviour of the accused after the incident. Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment?” These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused.” 12. On consideration of the entire evidence, including medical evidence, as also the manner of assault, we are of the opinion that the appellant had no any grudge towards the deceased. The appellant had no intention to cause fatal injuries to the deceased and the incident in question had happened in the heat of passion. On consideration of the entire evidence, including medical evidence, as also the manner of assault, we are of the opinion that the appellant had no any grudge towards the deceased. The appellant had no intention to cause fatal injuries to the deceased and the incident in question had happened in the heat of passion. The appellant could not be said to have taken any undue advantage or acted in a cruel manner. The appellant had inflicted only a single blow with scythe on the head of the deceased. Further, it has come out on record that the incident in question happened on a very trivial issue. It is also required to be noted that no criminal case except the present one is pending against the appellant. 13. The Supreme Court had an occasion to deal with cases of similar nature. In Jagrup Singh v. State of Haryana (1981) 3 SCC 616 : ( AIR 1981 SC 1552 ), the accused had inflicted a single blow in the heat of moment in a sudden fight with blunt side of Gandhala on the head of the deceased causing his death. According to the opinion of the doctor this particular injury was sufficient in the ordinary course of nature to cause death. But, according to the Supreme Court, the intention to cause such an injury which was likely to cause death had not been made out. The Supreme Court altered the conviction of the accused from Section 302 IPC to Section 304 Part II IPC and the accused was directed to suffer rigorous imprisonment for a period of seven years. 14. The decision relied upon by the learned APP in the case of Som Raj @ Soma (supra) will not apply to the facts of the present case since in that case, when the accused was caught by the witness he was in process of inflicting second blow on the deceased. However, in this case, the accused had inflicted only one blow on the deceased and ran way from the place of offence. Further, the appellant inflicted single blow on the head of the deceased, but the ferocity was not such that the deceased died, the deceased survived for about eight hours. Thus, the facts of the present are materially different from the one cited by learned APP appearing for the respondent State. 15. Further, the appellant inflicted single blow on the head of the deceased, but the ferocity was not such that the deceased died, the deceased survived for about eight hours. Thus, the facts of the present are materially different from the one cited by learned APP appearing for the respondent State. 15. In view of the above, we are clearly of the view that the conviction of the present appellant cannot be sustained under Section 302 of the Indian Penal Code, but the appropriate Section under which the appellant ought to be convicted is Section 304 Part-I of the Indian Penal Code. 16. For the foregoing reasons, the present appeal is partly allowed. The judgment and order under challenge is modified and altered from under section 302 of the Indian Penal Code to one under Section 304 part-I of the Indian Penal Code and the appellant is sentenced to undergo rigorous imprisonment for a period of 10 (ten) years instead of life imprisonment. The rest of the part of the judgment and order remains unaltered. It is clarified that the appellant herein shall be given the benefit of set off and remission and his case may be considered by the appropriate authority for premature release. Record and proceedings be sent back to the concerned Trial Court forthwith. Appeal partly allowed.