JUDGMENT : Anant S. Dave, J. This appeal under Section 374(2) of Code of Criminal Procedure, 1973 arises out of judgment and order of conviction and sentence dated 15.10.2010 to undergo the sentence for life imprisonment and fine of Rs.500/- and in default of the same further imprisonment for 15 days as imposed by learned Fast Track Court No.4 at Vadodara in Sessions case No. 112 of 2009 of the offence under Sections 302, 325, 504, 114 of Indian Penal Code and under Section 135 of Bombay Police Act. 2. The brief facts of the case of prosecution have basis in FIR filed as offence is disclosed initially for Sections 325, 504, 114 of Indian Penal Code. Upon death of the injured who succumbed to injuries Section 302 came to be added. That, on 15.1.2009 around 16:00 hours i.e. the next day of Uttarayan in the area on Kishanwadi, Jayambe Street in Vadodara, when complainant Govindbhai Pratapbhai Pateliya and deceased Mukeshbhai Pratapbhai Pateliya were flying kites in the roof of their house, a kite had fallen nearby their house and was picked up by children of the area, but one Jigneshbhai Jagdishbhai Jaiswal snatched away the kite. Meanwhile, a quarrel had taken place with the present accused Kiritbhai Kanubhai and Jigneshbhai Jaiswal. In fact, complainant Govindbhai Pateliya and deceased Mukeshbhai Pateliya both had persuaded the present accused and another one not to quarrel but without paying any heed, the accused herein and another person started giving blow of stick and particularly, the accused herein is alleged to have hit a horizontal wooden bar connected with Charpoi/cot upon right parietal region of Mukeshbhai which resulted into fracture of skull causing grievous injuries and immediately Mukeshbhai was hospitalized at SSG Hospital, Vadodara. Upon deterioration of his condition he was then admitted to Kalavati Hospital. While receiving the treatment he died around 18:25 hours on 16th January, 2009 and accordingly, FIR was registered at Panigate Police Station, Vadodara. Upon deterioration of his condition he was then admitted to Kalavati Hospital. While receiving the treatment he died around 18:25 hours on 16th January, 2009 and accordingly, FIR was registered at Panigate Police Station, Vadodara. That necessary investigation followed after drawing panchnama of scene of offence, recording statements, visiting the place of crime and hospitals, medical certificates were issued and inquest panchnama was drawn and dead body was sent for autopsy/postmortem and further seizure panchnama of body of the deceased, clothes and other procedure was followed including that of recovery of muddamal weapon allegedly used for the crime and at the end of the investigation charge-sheet was filed and later on case was committed to the Court of Sessions and was tried accordingly. 3. Upon framing of charge and denial of guilt by the accused evidence namely, written as well as oral was taken into consideration. Upon hearing the arguments canvassed by learned APP as well as learned counsel for the defence and appreciation of the evidence, the learned trial Judge found the evidence convincing and clinching so as to establish guilt of the accused and manner in which wooden log was hit on vital part of the body resulting into skull fracture and hemorrhage which was also a cause of death as per postmortem report. After relying on various decisions of the Apex Court and this Court as produced by learned counsels, it was held that an offence was made out to convict and sentenced the accused under Section 302 by awarding life imprisonment and order was passed. 4. On perusal of summary of evidence and findings and reasonings of learned trial Judge, it transpires that though injuries were caused and so reflected in the postmortem note as well as medical certificates issued by the doctor during such injuries at the threshold, an eye witness, the complainant and real brother, no doubt stood by version in testimonies the resultant effect of vital injuries on vital part weighed with the learned Judge for bringing the case within parameters of Section 302 of Indian Penal Code. The above fact came to be corroborated with recovery of weapons allegedly used and possibility of such injuries. The above fact came to be corroborated with recovery of weapons allegedly used and possibility of such injuries. However, the backdrop and beginning of the quarrel revealed that it was not premeditated or planned or with any motive but when accused was persuaded by the complainant and his brother not to abuse or take up quarrel, the accused herein suddenly used wooden bar with him with such a force on vital part and therefore intention was noticed to that extent which resulted into sentencing the accused for life imprisonment. 5. Mr.Pravin Gondaliya, learned advocate for the appellant at the outset would contend that though there is a dispute about scene of offence and presence of eye witnesses and whether grievous injuries that would result into death, for which, the appellant had any intention or knowledge remained un-answered but conclusions were drawn only because of skull fracture and injuries to which, injured had succumbed to. It is also submitted that a solitary blow was given by a wooden bar, for which, no knowledge even can be attributed much less of the intention and further in absence of any premeditation or planned action when even as per the eye witnesses verbal exchange and heated arguments had taken place for a trivial incident of taking away kite, the accused herein had admittedly not taken any undue advantage of the situation or acted in any cruel or unusual manner and there appeared not a murder but a culpable homicide not amounting to murder and Exception IV of Section 300 is attracted. Therefore, if totality of circumstances so reflected from the evidence are taken together sentence of life imprisonment is not only excessive but unwarranted and appellant could have been convicted and sentenced under Section 304 Part-I of Indian Penal Code. It is submitted that witnesses namely Govindbhai PW-1, Pratapbhai, father of the deceased PW-2, Jigneshbhai PW-3 a friend of complainant, Hiteshbhai PW-4 neighbour and another witness Rameshbhai PW-5 in their testimonies bring out major contradictions and on such evidence sentence of 10 years would meet end of justice. 6. It is submitted that witnesses namely Govindbhai PW-1, Pratapbhai, father of the deceased PW-2, Jigneshbhai PW-3 a friend of complainant, Hiteshbhai PW-4 neighbour and another witness Rameshbhai PW-5 in their testimonies bring out major contradictions and on such evidence sentence of 10 years would meet end of justice. 6. Learned APP however would contend that accused herein himself invited provocation and committed murder, when he was admonished by complainant and another person not to use abusive language for a trivial issue, suddenly, he had given a blow of heavy wooden log on a vital part of the body with such a force that even a skull received a fracture causing internal injuries, which was the cause of the death and so deposed by doctors carrying out postmortem and another doctor who had given initial treatment. Therefore, conviction and sentence so awarded under Section 302 for life imprisonment do not require any alteration. 7. Learned APP has taken us to entire evidence, for which, reasons are given for the conclusion drawn as above by the learned trial Judge. 8. We have carefully gone through following evidences: ORAL EVIDENCE: Sr. No Name Exh. 1 Govindbhai Pratapbhai Pateliya-Complainant 15 2 Pratapbhai Somabhai Pateliya-Witness 20 3 Jigneshbhai Jagdishbhai Jaiswal-Witness 21 4 Dr. Bijaysinh Ganpatsinh Rathod 32 5 Dr. Zaknaben Shankarbhai Patel-Medical Officer 35 6 Dr.Shayam Chetandas Lalchandani-Surgeon 41 7 Jeetsinh Khumansinh, PSI 53 DOCUMENTARY EVIDENCE Sr. No. Name Exh. 1 Dr. Shayam Cehtandas Lalchandani-Surgeon 41 2 Panchnama of place of offence 25 3 Inquest panchnama 26 4 P.M.Note 33 5 Certificate of treatment given to deceased 36 6 Death certificate of Mukeshbhai 49 7 Yadi sent to F.S.L. For giving certificate 62 8 Certificate of treatment given to the deceased 72 9 Certificate of Forensic Medicine of Mukeshbhai 73 Column No.17 and 19 of injuries external as well as internal read as under: "Column 17: (1) One with surrounding swelling in area of 6 x 4 cm with irregular motive with shape but over Rt. Tempoparital region 4 cm----- Rt. Ear, red. Column 19: Rt. Temporoparital thick scalp hematoma. Rt. Fronto temporoparital linear extending to bone of skull middle central fexea. Rt. Fronto temporaparital EDH with pressure effect on skull side." Column 23: Cause of Death:- Death due to caused cerebral damage following trauma. 9. Tempoparital region 4 cm----- Rt. Ear, red. Column 19: Rt. Temporoparital thick scalp hematoma. Rt. Fronto temporoparital linear extending to bone of skull middle central fexea. Rt. Fronto temporaparital EDH with pressure effect on skull side." Column 23: Cause of Death:- Death due to caused cerebral damage following trauma. 9. We have perused the record of the case and the judgment impugned in the context of submissions made by learned advocates appearing for the parties namely, learned advocate for the defence and learned APP about nature of evidence surfaced on record, as above vis-a-vis awarding of sentence for life imprisonment under Section 302 of Indian Penal Code. Though learned Judge has considered why case of the accused would not fall either under Section 304 (Part-I) or (Part-II) of Indian Penal Code, no cogent and convincing reason appear particularly, when circumstances so existed reveal that accused had not reached at the place with any clear intention to commit murder but when verbal exchanges and heated arguments took place as deposed by Govindbhai PW-1, Pratapbhai PW-2, Jigneshbhai and PW-3, a wooden log was used to inflict injury that had landed on vital part namely, on the right parietal region causing fracture of the skull and other internal injuries as deposed by medical officers PW-9 Dr. Bijaysinh Ganpatsinh Rathod, PW-10 Dr. Zaknaben Shankarbhai Patel and PW-11 Dr.Binduben of nature of injuries, consequences and possibility of death due to injury No.1 sufficient in ordinary course of nature. At the same time, no weapon in the ordinary course was used to commit crime and further a single blow without any deliberation was given and as it was next day of festival of kite on 15th January the incident had genesis in taking over fallen kite of the person staying in the same locality. In such a case, where there is absence of premeditation and deliberate planning or prior preparation, upon sudden quarrel injuries are inflicted resulting into death of injured, for which, accused has not taken any advantage or acted cruelly or in unusual manner, he is entitled for benefit of such an exception. In such a case, where there is absence of premeditation and deliberate planning or prior preparation, upon sudden quarrel injuries are inflicted resulting into death of injured, for which, accused has not taken any advantage or acted cruelly or in unusual manner, he is entitled for benefit of such an exception. Under the circumstances, when we have carefully appraised ourselves of pursuing and considering the entire evidence oral as well as documentary to which reference is made in earlier paragraphs of the judgment, we are inclined to accept the submissions of learned advocate for the appellant herein that punishment of conviction and sentence of the accused convict ought to have been awarded under Section 304 (Part-I) inasmuch as inflicting of grievous injury on the head, vital parts of the injured, who succumbed to it, for which, intention could be attributed of causing bodily injury and such injury if inflicted was sufficient in ordinary course of nature to cause death. The case would fall in the 'second degree' of culpable homicide and considering Section 300 Clause III read with Exception IV of 300 make out a case in favour of the appellant as submitted by learned advocate and accordingly, this appeal under Section 374 (2) of Code of Criminal Procedure, 1973 is partly allowed. The conviction of the appellant-original accused under Section 302 of Indian Penal Code vide judgment and order dated 15.10.2010 arising from Sessions Case No.112 of 2009 passed by the learned Fast Tack Court No.4 at Vadodara is altered to conviction under Section 304 (Part-I) of Indian Penal Code. However the conviction and sentence of the appellant-original accused under Section 325, 504, 114 of IPC and under Section 135 of B.P. Act is upheld. 10. The appellant-convict is ordered to undergo rigorous imprisonment for a period of ten years and to pay fine of Rs.500/- in default of the same further imprisonment for 15 days under Section 304 (Part-I) of IPC instead of life imprisonment as awarded by the trial court under Section 302 of IPC. 11. The period of sentence already undergone shall be considered for remission of sentence qua appellant-original accused. 12. R & P to be sent back to the trial Court forthwith. Appeal Partly Allowed.