JUDGMENT V.M. Pancholi, J. 1. This appeal is filed by the State under section 378 of the Code of Criminal Procedure, 1973 against the judgment and order dated 9th October, 1992 rendered by the learned Sessions Judge, Ahmedabad (Rural) in Special (Atrocity) Criminal Case No. 40 of 1992 whereby the respondent-accused has been acquitted for the offence punishable under section 302 of the Indian Penal Code as well as under section 3(ii)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. 2. The prosecution case in brief was that on 23rd January, 1992, during the night hours, a quarrel took place between deceased Manubhai and the accused near the lorry of one Mukeshbhai Mirchumal. The accused, thereafter, immediately had gone near the S.T. Stand, brought the knife and gave one knife blow on the chest of the deceased. The said Manubhai, therefore, succumbed to the said injury and, therefore, the first information report came to be registered under section 302 of the Indian Penal Code. The deceased was belonged to the scheduled castes. Therefore, the offence was also registered under section 3(iii)(iv) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. The Investigating Officer carried out the investigation and, thereafter, filed charge-sheet against the accused. The case was committed to the learned Special Court, Ahmedabad (Rural) and, thereafter, during the course of the trial, the prosecution examined eleven witnesses and produced the documentary evidence on record. At the end of the trial, the learned Sessions Court acquitted the accused. Hence, the State has preferred this appeal. 3. The prosecution examined P.W. No. 1 Dr. Mahendrabhai Chandulal Shah exhibit-19. The said witness was posted on deputation as a medical officer at Community Health Center, Sanand in January, 1992. On 23rd January, 1992, at 9:15 p.m., the patient was brought before him in a serious condition. He had given preliminary treatment to the said patient for five minutes and, thereafter, within couple of minutes, the said patient expired. Therefore, he informed the police on telephone. On the next day, the postmortem was performed on the dead body of the deceased Manubhai Galabhai. This witness narrated the injuries sustained by the deceased. In the postmortem note, in column No. 17, he had described the external injuries sustained by the deceased which reads as under: "1. Incised cutting wound on the 2nd and 3rd intercostal region. 2. On the next day, the postmortem was performed on the dead body of the deceased Manubhai Galabhai. This witness narrated the injuries sustained by the deceased. In the postmortem note, in column No. 17, he had described the external injuries sustained by the deceased which reads as under: "1. Incised cutting wound on the 2nd and 3rd intercostal region. 2. 1/2 cm away from the lateral margine of the sternum, on the left side of the sternum which was elliptical in shape and obliquely situated. The injury was 5 C.M. x 2 C.M. and 4 C.M. deep. 3. On palpation I found fracture of the 3rd rib on left side." The said witness also stated about the internal injuries caused to the deceased during the course of his deposition. According to him, all the said injuries were ante mortem. As per his opinion, the cause of death was due to excessive blood loss caused by the external injuries which led to cardio-respiratory failure. He further deposed that in his opinion, the external injury with its corresponding internal injuries was sufficient to cause death in the ordinary course of nature. As per his opinion, the external injury and the corresponding injuries mentioned in the postmortem report are possible by any sharp cutting instrument. He further stated that the external injury with its corresponding internal injuries can be caused with the Muddamal article No. 3 knife. The postmortem examination was carried out in a panel by the said witness along with Dr. G.K. Chauhan. During his cross-examination, the said witness stated that he informed the police within about five to ten minutes after the patient died. The patient was unconscious when he first saw him. He further stated that it is possible that the patient may have become unconscious half and hour before he saw him because of loss of blood. 4. P.W. No. 2 Dr. Gaurav Keshavlal Chauhan exhibit-21 was working as a medical officer at Community Health Center, Sanand. He had performed the postmortem examination on the dead body of the deceased Manubhai along with P.W. No. 1 Dr. Mahendra Shah. The said witness has also narrated the same thing which the P.W. No. 1 has stated in his deposition about the injuries sustained by the deceased. 5. P.W. No. 3 Mukeshbhai Mirchumal Sindhi exhibit-22, was an eye witness to the incident. Mahendra Shah. The said witness has also narrated the same thing which the P.W. No. 1 has stated in his deposition about the injuries sustained by the deceased. 5. P.W. No. 3 Mukeshbhai Mirchumal Sindhi exhibit-22, was an eye witness to the incident. The said witness was having lorry and selling eggs and other food items relating to the eggs. The said lorry was situated opposite to C.K. High School. On 23.1.1992, at about 9:00 to 9:15 p.m., he was present at his lorry. One Manubhai came at his place. He placed an order. Thereafter, the accused Bhopa came to his lorry. He also placed an order for boiled eggs. A quarrel took place between the accused and Manubhai on trivial issue. The accused used filthy language and thrown the primus towards Manu. However, it did not hit him. Thereafter, he immediately went near the bus stand, brought the knife and suddenly gave the knife blow on the chest of Manubhai. He identified the Muddamal article-knife. He further stated in his deposition that after giving the knife blow, the accused fled from the place of the incident. Manubhai was taken to the dispensary by one Jayantibhai and one Ranjitbhai in the auto-rickshaw. The doctor was not available in the dispensary. Therefore, both the aforesaid persons returned at the place of incident. Manubhai was dropped at the Varanda of one shop of Sindhi. This witness was scared because of the said incident and, therefore, he went to his house and informed his father and uncle Dolatram. His father and uncle, thereafter, had gone to the house of Manubhai. During his cross-examination, the said witness stated that free fight had taken place between Manubhai and the accused. One Ranjitbhai and Jayantibhai intervened and saved Manubhai. He further stated that Manubhai was taken to the hospital by Jayantibhai and Ranjitbhai. However, within five to seven minutes, they returned back and dropped Manubhai near the shop of one Sindhi. He further admitted that he had not informed about the incident to the police. The police, however, recorded his statement on the same day. The statement of one Jayantibhai (JD) was also recorded on the next day. 6. P.W. No. 9-Ranjitbhai Laxmanbhai exhibit-32 was another eye witness who was present when the incident had taken place. He deposed that he was near the lorry of one Mirchumal. The police, however, recorded his statement on the same day. The statement of one Jayantibhai (JD) was also recorded on the next day. 6. P.W. No. 9-Ranjitbhai Laxmanbhai exhibit-32 was another eye witness who was present when the incident had taken place. He deposed that he was near the lorry of one Mirchumal. Son of Mirchumal, namely, Mukesh was present at the lorry. At that time, one Manubhai Galabhai came there and placed an order for boiled eggs. Thereafter, one Bhopo, i.e., the accused came at the said place from the S.T. Stand. Bhopa has also placed an order for boiled eggs. Thereafter, the quarrel took place between Manubhai and Bhopa on trivial issue. Bhopa used filthy language. Scuffle took place between both of them. He and one Jayantibhai Prajapati, an auto-rickshaw driver intervened. Thereafter, Bhopa has thrown the primus towards Manubhai, however, it did not hit him. Bhopa, thereafter, immediately went to the S.T. Stand and brought the knife. He gave knife blow on the left hand side of the chest of Manubhai. He identified the Muddamal knife. The said witness further deposed that after Manubhai received the injuries, he requested the said witness and rickshaw driver that he be taken to the hospital. Therefore, the said witness and Jayantibhai had taken Manubhai to the hospital in the rickshaw. However, the hospital was closed and, therefore, they returned in the same rickshaw. Manubhai was dropped near the place of the incident. The said witness was scared and, therefore, he left the place of the incident and had gone to his residence. His statement was recorded by the police. During his cross-examination, the said witness has stated that near the lorry of Mirchumal, one Ambica Hotel and lorry of one Ishwarbhai are situated. There is a shop of Shantramdas Sindhi and lorry of one Natubhai near the said place. He further stated that there are other private dispensaries other than the dispensary of Dr. Upadhyay in Sanand. He further stated in his cross-examination that he was frightened and confused and, therefore, he dropped Manubhai at the place of incident. He further stated that because he was confused, he had not informed the police about the said incident. 7. P.W. No. 4 Amrutbhai Galabhai exhibit-23 was the brother of the deceased Manubhai. This witness has lodged the first information report. He further stated that because he was confused, he had not informed the police about the said incident. 7. P.W. No. 4 Amrutbhai Galabhai exhibit-23 was the brother of the deceased Manubhai. This witness has lodged the first information report. In his deposition, the said witness has stated that on 23.1.1992, he got the information in the night that his brother Manubhai has sustained injuries. He is serious and, therefore, he immediately went near the lorry of Mirchumal. His brother was lying near Ambica Hotel. Mirchumal narrated about the manner in which the incident had taken place. Thereafter, his brother Manubhai also informed him how the incident had taken place. This witness clarified that his brother informed about the incident in the auto rickshaw when he was taken to the hospital along with one Shantilal and Dolly (Dolatram). Manubhai was taken to the government hospital. One lady was present in the hospital and informed the said witness that he has to inform the police. Therefore, he went to the police station and the first information report was recorded. Thereafter, he had gone to the hospital along with the police. At that time, his brother had expired. During his cross-examination, the said witness has stated that Mirchumal gave the information that one Bhopa has given knife blow to his brother Manubhai. Thereafter, he along with one Shantilal and one auto rickshaw driver had gone to the place of Mirchumal. He has denied the suggestion that when he reached at the place of the incident, his brother was unconscious and was in a bleeding condition. He has further stated in his cross-examination that he has not stated in his complaint that Manubhai was not visiting his house. He was wandering in the village. He was driven out from the house since last two to three years and he was not in speaking terms with Manubhai. 8. P.W. No. 6-Shantilal Becharbhai exhibit-29 has stated in his deposition that he is residing in the Vankarvas near the residence of Amrutbhai Galabhai. On the date of the incident, at about 9:00 p.m. when he was near the Pan shop, Mirchumal came at the said place. He informed Amrutbhai that Bhopa has given knife blow to his brother Manubhai and, therefore, he is lying near his lorry. He is unconscious. On the date of the incident, at about 9:00 p.m. when he was near the Pan shop, Mirchumal came at the said place. He informed Amrutbhai that Bhopa has given knife blow to his brother Manubhai and, therefore, he is lying near his lorry. He is unconscious. Therefore, Mirchumal, Amrutbhai and one Dolatram along with the said witness Shantilal had gone near the place of the incident, i.e., the lorry of Mirchumal. Manubhai was lying at the said place. He called the auto rickshaw. Thereafter, Manubhai was taken to the government hospital in the said auto rickshaw. One Dolatram, Amrutbhai and the said witness were present in the said auto. At that time, Manubhai told that Bhopa who is working at the lorry of Natubhai had picked up the quarrel and, thereafter, gave knife blow to him. The incident had taken place in connection with serving of snacks. After Manubhai was reached to the hospital, within few minutes, he succumbed to the injuries. During his cross-examination, the said witness stated that near the lorry of Mirchumal, other hotels and lorries are situated. 9. P.W. No. 8-Dolatram Hariram Sindhi exhibit-36 is the brother of Mirchumal and uncle of Mukesh. This witness has also supported the case of the prosecution and stated that he along with Mirchumal, Amrutbhai and Shantibhai came at the place of the incident. Manubhai was coming from the opposite direction. He had pressed his hand on his chest and, thereafter, immediately, he fell down near Ambica Hotel. Thereafter, auto rickshaw was called. Manubhai was taken to the civil hospital in the said auto rickshaw. This witness was present in the auto along with one Shantibhai and Amrutbhai. 10. P.W. No. 5-Sureshbhai Kishandas is the panch witness who has signed the panchnama of the place of the incident. In his presence, panchnama of the place of incident was prepared. He identified the signature in the panchnama. Blood stains were taken from the place of the incident. The said panchnama is produced at exhibit-25. 11. P.W. No. 10-Mukeshbhai Mahendrabhai Barot-exhibit-33 is another panch witness who has signed the panchnama of discovery of weapon. He has stated in his deposition that Muddamal knife is discovered at the instance of the accused Bhopabhai. He has supported the case of the prosecution. The discovery panchnama of weapon is produced at exhibit-34. 12. 11. P.W. No. 10-Mukeshbhai Mahendrabhai Barot-exhibit-33 is another panch witness who has signed the panchnama of discovery of weapon. He has stated in his deposition that Muddamal knife is discovered at the instance of the accused Bhopabhai. He has supported the case of the prosecution. The discovery panchnama of weapon is produced at exhibit-34. 12. P.W. No. 7-Dilipbhai Ganbhirsinh Thakore-exhibit-30 is an auto rickshaw driver in whose rickshaw Manubhai was taken to the civil hospital. In his deposition, the said witness has stated that Manubhai was taken in his auto. At that time, one Dolatram and two to three other persons were present in the auto. During his cross-examination, the said witness has stated that when he came near Manubhai, he was unconscious. When Manubhai was dropped at the hospital, at that time also, he was serious and unconscious. 13. Uday Narendra Malvi, P.W. No. 11 - exhibit-35 was working as Police Inspector at Sanand Police Station. This witness has recorded the first information report, prepared the panchnama of the place of incident, recorded the statement of the witnesses, arrested the accused and also prepared the discovery panchnama of the weapon. The FSL report is produced at exhibit-38. 14. This is in nutshell the evidence produced by the prosecution before the learned Trial Court. The learned Trial Court discussed the evidence produced on record and, thereafter, has observed that the depositions given by the two witnesses, namely, P.W. No. 3-Mukeshbhai Mirchumal exhibit-22 and P.W. No. 9-Ranjitbhai Laxmanbhai exhibit-32 are not required to be believed. The learned judge observed that though Mukesh is an eye witness to the incident and in his presence the incident has taken place at his lorry, he has not immediately informed about the said incident to the relatives of the deceased nor he informed the police about the said incident. Therefore, his conduct is doubtful. The learned Judge further observed that P.W. No. 9-Ranjitbhai was present at the time of incident. As per his version, he had taken Manubhai in the auto of one Jayantibhai at the dispensary of Dr. Upadhyay. However, the dispensary was closed and, therefore, they returned and dropped Manubhai near the shop of one Sindhi. The conduct of this witness is also doubtful and unnatural. The learned Judge observed that why Manubhai was not taken to the government hospital by the said witness when the dispensary of Dr. Upadhyay was closed. Upadhyay. However, the dispensary was closed and, therefore, they returned and dropped Manubhai near the shop of one Sindhi. The conduct of this witness is also doubtful and unnatural. The learned Judge observed that why Manubhai was not taken to the government hospital by the said witness when the dispensary of Dr. Upadhyay was closed. When Manubhai was conscious, there was no reason for this witness to drop Manubhai at the place of incident and leave him in such a bleeding condition. The learned judge further observed that the prosecution has not examined Jayantibhai (JD), an auto rickshaw driver, in whose auto, Manubhai was taken at the dispensary of Dr. Upadhyay. The Investigating Officer has not tried to collect the evidence from the auto of Jayantibhai. The learned Judge further observed that though the statement of the father of Mukeshbhai, i.e., Mirchumal was recorded, the prosecution has not examined the said Mirchumal. The learned Judge further observed that P.W. No. 8-Dolatram exhibit-31 has specifically stated in his deposition that when he reached at the place of incident, Manubhai was coming from the direction of Ambica Hotel pressing his hand on his chest and, thereafter, he fell down near the said hotel, whereas another witness has stated that Manubhai was lying at the said place. Thereafter, the learned Judge observed that if Manubhai was in a condition that he can walk, why P.W. No. 9-Ranjitbhai dropped him at the shop of Sindhi. The learned Judge discussed that other shop owners are not examined by the prosecution. Whether Dr. Upadhyay was present at his dispensary or not is also not coming on record. The prosecution has not examined Dr. Upadhyay nor any investigation is carried out in that direction. The learned Judge, therefore, was of the opinion that the version given by both the eye witnesses does not inspire any confidence. The learned Judge further discussed about the oral dying declaration given by Manubhai before the three witnesses, namely, P.W. No. 4-Amrutbhai, P.W. No. 6-Shantilal and P.W. No. 8-Dolatram. The learned Judge has discarded the version given by the said witnesses on the ground that an independent witness, i.e., P.W. No. 7-Dilipbhai an auto rickshaw driver, has stated in his deposition that when he came to the place of incident for taking Manubhai to the government hospital, Manubhai was unconscious. The learned Judge has discarded the version given by the said witnesses on the ground that an independent witness, i.e., P.W. No. 7-Dilipbhai an auto rickshaw driver, has stated in his deposition that when he came to the place of incident for taking Manubhai to the government hospital, Manubhai was unconscious. When they reached to the hospital, at that time also, his condition was serious and he was unconscious. The learned Judge further observed that P.W. No. 1-Dr. Mahendrabhai Chandulal Shah has also stated in his cross-examination that when the patient was brought before him, he was unconscious. He further deposed that it is possible that the patient may have become unconscious half an hour before he saw him. In view of such evidence on record, the learned Judge was of the opinion that the depositions given by the aforesaid three witnesses are not required to be believed. About the discovery of knife, the learned Judge observed that though it is stated by the Investigating Officer and the panch witness that Muddamal weapon was discovered at the instance of the accused Bhopa, when the said Muddamal weapon was sent to the FSL, in the FSL report exhibit-38, blood was not found from the said Muddmala knife. Thus, the learned Judge was of the opinion that the prosecution has failed to prove the case against the accused beyond reasonable doubt and, therefore, acquitted him. 15. It is this judgment and order rendered by the learned Trial Court which is challenged before this Court by the State. The learned APP Ms. Jirga Jhaveri has submitted that there are two eye witnesses to the incident. Both these eye witnesses have supported the case of the prosecution. These witnesses are independent witnesses and they are not related in any manner to the deceased. These witnesses have no enmity with the accused and, therefore, the learned Trial Court ought to have believed the version given by these two witnesses. Learned APP further submitted that both the doctors P.W. No. 1 Dr. Mahendra as well as P.W. No. 2 Dr. Gaurav have narrated about the injuries sustained by the deceased. As per the opinion of the said doctors, the cause of death was due to excessive blood loss by external injuries which lead to cardio-respiratory failure. Learned APP further submitted that both the doctors P.W. No. 1 Dr. Mahendra as well as P.W. No. 2 Dr. Gaurav have narrated about the injuries sustained by the deceased. As per the opinion of the said doctors, the cause of death was due to excessive blood loss by external injuries which lead to cardio-respiratory failure. As per the opinion of the said doctors, the injury was sufficient to cause death in the ordinary course of nature. Learned APP, thereafter, submitted that the deceased Manubhai gave oral dying declaration before the three witnesses, namely, P.W. No. 4 Amrutbhai, P.W. No. 6 Shantilal and P.W. No. 8 Daulatram. She further submitted that the Investigating Officer has also supported the case of the prosecution. Muddamal knife is also discovered at the instance of the accused and, therefore, there is an ample evidence on record against the accused. In spite of that, the learned Trial Court has committed an error while acquitting him and, therefore, this Court may allow this appeal and convict the accused. 16. On the other hand, learned advocate Mr. Pratik Barot, appearing on behalf of the respondent-accused has mainly submitted that the oral dying declaration given by the deceased Manubhai before three witnesses is not required to be believed in view of the fact that the independent witnesses, namely, P.W. 7-Dilipbhai an auto rickshaw driver specifically stated that when he reached at the place of incident for taking Manubhai to the government hospital, he was unconscious. Even P.W. No. 1-Dr. Mahendra Shah has also deposed that when the patient was brought before him, he was unconscious. Thus, when Manubhai was not conscious when he was taken to the government hospital in the auto, there is no question of giving any oral dying declaration before the said three witnesses and, therefore, the learned Trial Court has rightly discarded the version given by the three witnesses. He submitted that discovery of knife at the instance of the accused is also doubtful. No blood is found from the said Muddamal. He further submitted that the conduct of the two eye witnesses is also doubtful. Mukesh has not informed the police immediately nor he informed the relatives of the deceased. Ranjitbhai and one Jayantibhai (JD) were present and they were taken Manubhai to the dispensary in the auto of JD. No blood is found from the said Muddamal. He further submitted that the conduct of the two eye witnesses is also doubtful. Mukesh has not informed the police immediately nor he informed the relatives of the deceased. Ranjitbhai and one Jayantibhai (JD) were present and they were taken Manubhai to the dispensary in the auto of JD. However, when the doctor was not available, they dropped Manubhai at the place of incident. Such conduct of the two eye witnesses is doubtful and, therefore, the learned Trial Court has rightly discarded the version given by these two witnesses. The learned advocate further submitted that Manubhai succumbed to the injuries because of excessive blood loss. If the treatment was immediately given to the deceased, he could have survived. He further submitted that the prosecution has not examined Mirchumal as well as Jayantibhai (JD) and thereby suppressed certain important facts from the court. Looking to the overall evidence on record, the learned Trial Court has not committed any error while acquitting the accused and, therefore, this Court may not interfere with the said order. 17. We have considered the rival submission canvassed on behalf of the learned advocates for the parties. We have also gone through the record. Before we discuss the evidence on record, we would like to refer the powers of the High Court while dealing with the acquittal appeal. The Hon'ble Supreme Court in the case of Chandrappa & Ors. vs. State of Karnataka, reported in 2007 (4) SCC 415 has laid down the guidelines for exercising the powers by the Appellate Court while dealing with the acquittal appeal. The Hon'ble Supreme Court has observed in para-42 as under: "From the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge; (1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded; (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law; (3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion. (4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court." 18. Keeping in view the aforesaid guidelines laid down by the Hon'ble Supreme Court that an Appellate Court has power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded and an Appellate Court may reach its own conclusion both, of fact and of law, we will consider the evidence on record. 19. The Hon'ble Supreme Court in another decision rendered in the case of Richhpal Singh Meena vs. Ghasi @ Ghisa & Ors., reported in 2014 (8) SCC 918 has observed in para 35 as under: "Having considered all the decisions cited before us (and perhaps there are many more on the subject but not cited), in or opinion, a five-step inquiry is necessary: (i) Is there as homicide? (ii) If yes, is it a culpable homicide or a "not-culpable homicide"? (iii) if it is a culpable homicide, is the offence one of culpable homicide amounting to murder (Section 300 IPC) or is it a "not culpable homicide" then a case under Section 304-A IPC is made out. (v) if it is not possible to identify the person who has committed the homicide, the provision of Section 72 IPC may be invoked. Since this five-pronged exercise has apparently been missed out in the first category of decisions, the learned amicus was of the opinion that those decisions require reconsideration." 20. (v) if it is not possible to identify the person who has committed the homicide, the provision of Section 72 IPC may be invoked. Since this five-pronged exercise has apparently been missed out in the first category of decisions, the learned amicus was of the opinion that those decisions require reconsideration." 20. Keeping in view the said proposition in mind, now we will deal with the evidence on record. There is no doubt with regard to the fact that deceased Manubhai died because of homicidal death. P.W. No. 1 and P.W. No. 2 both the doctors have deposed that the deceased sustained incised cutting wound on the second and third inter costal region. The said injury was sufficient in the ordinary course of nature to cause death. Thus, it is clear from the record that deceased Manubhai died because of the said injury sustained by him on his chest. There are two eye witnesses to the incident, P.W. No. 3-Mukeshbhai as well as P.W. No. 9 Ranjitbhai. Both these two witnesses have narrated in their depositions how the incident had taken place. Mukesh has specifically stated that Manubhai placed an order of boiled eggs. Thereafter, accused Bhopa has also placed an order for the said food item. Thereafter, accused used filthy language and on trivial issue, scuffle took place between both of them. Accused brought knife from the S.T. Stand, came at the spot and gave one blow on the chest of Manubhai and, thereafter, left the place of the incident. Manubhai was taken to the dispensary by one Ranjitbhai and Jayantibhai (JD) in the auto of JD. However, the dispensary was closed. Therefore, they dropped Manubhai near the shop of Sindhi. These witnesses have specifically stated in their depositions that they were scared and, therefore, they left the place of incident. These two witnesses are an independent witnesses. They are not related to the deceased nor they have any enmity with the accused. Therefore, there is no reason to disbelieve the version given by these two eyewitnesses. The learned Judge has observed in his judgment that the conduct of these two witnesses is not natural. Mukesh has not informed the police or the relatives of the deceased-Manubhai immediately after the incident and, therefore, his conduct is unnatural. Therefore, there is no reason to disbelieve the version given by these two eyewitnesses. The learned Judge has observed in his judgment that the conduct of these two witnesses is not natural. Mukesh has not informed the police or the relatives of the deceased-Manubhai immediately after the incident and, therefore, his conduct is unnatural. However, we are of the opinion that Mukesh who is aged about 17 years was scared because of the incident which has taken place in his presence near his lorry and, therefore, he might not have informed about the said incident to the police immediately. However, the said witness has immediately gone to his house and informed his father as well as his uncle and in turn both these persons, namely Mirchumal and Dolatram informed the brother of the Manubhai, namely, P.W. No. 4 Amrutbhai about the incident and, therefore, in our opinion, the conduct of Mukesh cannot be said to be doubtful. Similarly, another eye witness P.W. No. 9 Ranjit has also specifically deposed in his deposition that he was frightened because of the incident and, therefore, he had taken Manubhai at the dispensary of Dr. Upadhyay. When it was closed he and JD dropped Manubhai at the place of incident. The conduct of the said witness cannot be said to be unnatural. A person may react differently in a given situation. The age of the sad witness is 22 years at the time of incident. Thus, we are of the opinion that when two eye witnesses have seen the incident and have narrated the manner in which the incident had taken place which is supported by the medical evidence, therefore, there is no reason to disbelieve the version given by these witnesses. However, the learned Trial Court is right in observing that the version given by the three witnesses, i.e., P.W. No. 4 Amrutbhai, P.W. No. 6 Shantilal and P.W. No. 8 Dolatram is doubtful with regard to oral dying declaration given by Manubhai in the auto of P.W. No. 7 Dilipbhai when he was taken to the government hospital. P.W. No. 7, an independent witness has specifically stated that when they came near the place of incident for taking Manubhai to the government hospital when he was called, Manubhai was unconscious. When they reached at the government hospital, at that time also, condition of Manubhai was serious and he was unconscious. P.W. No. 7, an independent witness has specifically stated that when they came near the place of incident for taking Manubhai to the government hospital when he was called, Manubhai was unconscious. When they reached at the government hospital, at that time also, condition of Manubhai was serious and he was unconscious. P.W. No. 1 Dr. Mahendra Shah has also, in his cross-examination, stated that the patient was unconscious when he first saw him. He further stated that it is possible that patient may have become unconscious half an hour before he saw him. Thus, looking to the deposition given by the said witness, the story of giving oral dying declaration by Manubhai before these three witnesses is not required to be believed and, therefore, the learned Judge is right in discarding the deposition of the said witnesses with regard to the oral dying declaration. 21. Thus, looking to the facts and circumstances and the evidence on record, when there are two independent eye witnesses who have supported the case of the prosecution and the same is corroborated by the medical evidence, we are of the opinion that the accused is involved in the commission of the aforesaid crime. 22. Therefore, the next question would be whether the accused has committed the offence of culpable homicide amounting to murder punishable under section 302 of the Indian Penal Code or whether he has committed the offence of culpable homicide not amounting to murder. 23. Section 300 of the Indian Penal Code provides that; Except in the cases hereinafter excepted, 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. Exception 1.-When culpable homicide is not murder.-Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. The above exception is subject to the following provisos:- First.-That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. Secondly.-That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. Thirdly.-That the provocation is not given by anything done in the lawful exercise of the right of private defence. Explanation.-Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. Exception 2.-Culpable homicide is not murder if the offender in the exercise in good faith of the right of private defence or person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. Exception 3.-Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused. Exception 4.-Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner. Explanation.-It is immaterial in such cases which party offers the provocation or commits the first assault. Exception 5.-Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent. 24. Explanation.-It is immaterial in such cases which party offers the provocation or commits the first assault. Exception 5.-Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent. 24. From the evidence on record, it emerges that the quarrel took place between the deceased and the accused in a spur of moment and that too in the trivial issue of serving the food. Initially, there was free fight between the deceased and the accused. At that time, P.W. No. 9 Ranjitbhai and one JD intervened and saved Manubhai. Thereafter, the accused had thrown the primus on the deceased, however, it did not hit him. Accused, therefore, went to the S.T. Stand, brought the knife and gave blow on his chest. Thus, it is clear from the record that the accused has given one blow on the chest of the deceased in a spur of moment. Thus, it can be said that the accused has committed the offence without premeditation and in the heat of moment. It is further clear from the evidence on record that the accused had not taken any undue advantage or acted in a cruel or unusual manner. The medical evidence supports the case of the eye witness that deceased sustained one injury on his chest. Thus, looking to the aforesaid evidence on record, we are of the opinion that the present case is covered under exception 4 of section 300 of the Indian Penal Code. Thus, the respondent accused is convicted for the said offence. 25. The Supreme Court in the case of Chenda @ Chanda Ram vs. State of Chhatisgarh, (2013) 12 SCC 110 held as under: "If the case falls under Exception 4, then the further inquiry should be as to whether the case falls under the first part of Section 304 or the second part, which read as under: "304. 25. The Supreme Court in the case of Chenda @ Chanda Ram vs. State of Chhatisgarh, (2013) 12 SCC 110 held as under: "If the case falls under Exception 4, then the further inquiry should be as to whether the case falls under the first part of Section 304 or the second part, which read as under: "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 terms 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 extend 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." 26. Thus, in view of aforesaid discussion, in the present case accused is convicted for the offence punishable under section 304 Part-I. 27. The next question, therefore, would be about the sentence. Learned advocate Shri Pratik Barot appearing for the accused has submitted that at the time of the incident, the accused was aged about 20 years. He is coming from the poor strata of the society. He was working as a labourer at the lorry of one Natubhai as deposed by one of the witnesses. The incident had taken place in the year 1992, i.e., before more than 23 years back. Thus, looking to the facts and circumstances of the case, this Court may award lesser sentence to the accused. 28. Learned advocate Shri Barot has relied upon a decision rendered by the Hon'ble Supreme Court in the case of Bishnupada Sarkar vs. State of West Bengal, reported in 2012 (11) SCC 597 for awarding the sentence. In the said case also, the incident had taken place before 12 years. The accused was facing tremendous financial and physical hardship. In the said case also, no evidence was shown to suggest any premeditation on the part of the appellant to assault the deceased or any intention to kill the deceased or any enmity. In the said case also, the incident had taken place before 12 years. The accused was facing tremendous financial and physical hardship. In the said case also, no evidence was shown to suggest any premeditation on the part of the appellant to assault the deceased or any intention to kill the deceased or any enmity. Looking to the facts and circumstances of the said case, the Hon'ble Supreme Court awarded sentence of seven years to the said accused. 29. Learned advocate is right in making his submission that the incident has taken place before 23 years. He is coming from a poor family. At the time of the incident, he was aged about 20 years. The incident has taken place in a spur of moment. Thus, looking to the overall facts and circumstances of the case, we are of the opinion that sentence of imprisonment of seven years is required to be awarded to him. 30. Thus, the accused is ordered to suffer sentence of rigorous imprisonment for a term of seven years. The accused shall surrender before the jail authority on or before 31st July, 2015. In view of the aforesaid discussion, this appeal is allowed to the aforesaid extent. R & P be sent back to the learned Trial Court. Appeal Partly Allowed.