JUDGMENT : K.S. Jhaveri, J. 1. By way of this appeal, the appellant-original accused has challenged judgment and order rendered in Sessions Case No. 32 of 2006 on 20/09/2007 by the learned Additional Sessions Judge, Fast Track Court, Anjar at Kutchh, whereby the appellant-original accused was convicted for the offence punishable under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life with a fine of Rs. 5,000/-, in default, to undergo one year rigorous imprisonment. The appellant-original accused was also convicted for the offence punishable under Section 135 of the Bombay Police Act and sentenced to undergo six months rigorous imprisonment with a fine of Rs. 500/-, in default, to undergo one month rigorous imprisonment. Both the sentences are ordered to run concurrently with a benefit of set off. 2. The prosecution case in nutshell is as under: 2.1 That on 22/02/2006 at about 11:00 O'clock in the morning, the accused had gone to Baniyari (Vandh) on his motorcycle bearing registration No. GJ-12-AG 4064, where the complainant, son of complainant-Indrish, deceased-Akbar @ Karo and relative of complainant viz., Khidar Haji Mamad were present in the vandh, at that time, accused had called the deceased-son of complainant, Akbar @ Kara and asked him to return the bullock, otherwise to return Rs. 6,000/- which was given by accused to him. In response to this, deceased-son of complainant, Akbar @ Kara told him that if he desires of money, he will give money and/or if desires of bullock, he will give bullock. Thereafter, the deceased had gone on the motorcycle of the accused with him. It is the case of prosecution that thereafter with an intention to kill the deceased, the accused had picked up the quarrel with deceased with regard to alleged recovery of money and took him at the sim of Kothavali Athamni, where he attacked on the head of the deceased with sharp edged weapon like Dhariya and thereby caused his murder. The mobile phone of NOKIA 3100 of the deceased was also looted by the accused. 2.2 FIR was lodged with Anjar Police Station, on basis of which offence was registered and case was investigated. The mobile phone of NOKIA 3100 of the deceased was also looted by the accused. 2.2 FIR was lodged with Anjar Police Station, on basis of which offence was registered and case was investigated. At the end of investigation, the Police found that there was sufficient material against the accused and, therefore, the charge-sheet was filed in the Court of learned JMFC, Anjar, who in turn, committed the case to the Court of Sessions and Sessions Case No. 32 of 2006 came to be registered. 2.3 Charge was framed against accused at Exh. 1 for offence punishable under Sections 302 and 394 of the Indian Penal Code and under Section 135 of the Bombay Police Act, to which he pleaded not guilty and claimed to be tried. 2.4 During the trial, the prosecution had examined following witnesses as oral evidence:- Sr. No. Name Exhibit 1 Haji Ramjan Hajishetha Node 8 2 Khidar Hajimamad Node 15 3 Chhagan Sumar Koli 20 4 Husen Hajimamad Node 22 5 Satarmamad Hanif Node 23 6 Alimamad Sumarbhai Shaikh 24 7 Shamjibhai Madevbhai Aahir 25 8 Devabhai Kanabhai Aahir 28 9 Siddhik Amad Katiya 31 10 Laxmangar Manglagar Gusai 35 11 Bhimji Ramji Vankar 38 12 Mohmmed Ladhabhai Khoja 40 13 Panchubha Nanubha Sodha 43 14 Laxmanram Khetaram Chaudhary 44 15 Jangbahadur Bhimbahadur Gurkha 45 16 Laltasing Jirajsing Gautam 49 17 Dr. Abhidha Ashokbhai Vaishnav 53 18 Rashmikant Govindlal Parmar 59 19 Pursis of closing evidence given by prosecution 69 2.5 The prosecution had also produced and relied upon following documentary evidence:- Sr. Abhidha Ashokbhai Vaishnav 53 18 Rashmikant Govindlal Parmar 59 19 Pursis of closing evidence given by prosecution 69 2.5 The prosecution had also produced and relied upon following documentary evidence:- Sr. No. Name Exhibit 1 Complaint 9 2 Inquesh Panchnama 29 3 Panchnama of Recovery of Dhariya used in commission of crime 30 4 Panchnama of place of incident 32 5 Search Panchnama 33 6 Arrest Panchnama 37 7 Recovery of blood stains clothes of deceased 39 8 Panchnama of sample of blood taken from the body of the accused 41 9 Yadi of deputing police investigation 50 10 Police Yadi written to Executive Magistrate 51 11 Postmortem Note 54 12 Police Yadi written to Medical Officer 55 13 Death certificate 56 14 Police report for filling complaint 60 15 Notification issued by District Magistrate 61 16 Police Yadi written to FSL, Junagadh 62 17 Certificate 63 18 Forwarding letter written by FSL, Junagadh 64 and 65 19 Report of Analysis of FSL, Junagadh 66 20 Forwarding letter written by FSL, Junagadh to Anjar Police Station 67 21 Serological Report by FSL, Junagadh 68 3. At the end of trial, the Court below recorded further statements of accused persons under Section 313 of Cr.P.C. and thereafter, passed the impugned judgment and order. Being aggrieved and dissatisfied with the impugned judgment of the trial Court, present appeals are preferred before this Court. 4. Mr. Dagli, learned Advocate for the appellant has submitted that case of the prosecution mainly depends upon evidence of P.W. 1, P.W. 2 and P.W. 3 who are examined at Exh. 8, 15 and 20 respectively; whereas they were not cited as eye-witnesses to the incident in question. All these witnesses have information about the incident in question from hearsay. He has further submitted that if the contradictions which have been proved in the cross-examination is seen, the prosecution has miserably failed to prove its case beyond reasonable doubt. 4.1 He has further submitted that prosecution case is based on circumstantial evidence and prosecution has failed to prove the case since the entire chain is not completed. He has further submitted that P.W. 3 was not the witness who has seen the accused going to kill the deceased and thereafter coming back. 4.2 According to Mr. 4.1 He has further submitted that prosecution case is based on circumstantial evidence and prosecution has failed to prove the case since the entire chain is not completed. He has further submitted that P.W. 3 was not the witness who has seen the accused going to kill the deceased and thereafter coming back. 4.2 According to Mr. Dagli, if the evidence of the prosecution witnesses are seen, they are not trustworthy and there are contradictions in their version as stated by them before the Police in their police statement. He has further submitted that prosecution has miserably failed to prove the time in recording of the complaint and lapses were found while drawing of the discovery and recovery Panchnama. 4.3 In support of the above submissions, learned Counsel for the appellant has relied upon Ramreddy Rajesh Khanna Reddy & Anr. Vs. State of A.P. [ (2006) 10 SCC 172 ] and Nizam & Anr. Vs. State of Rajasthan [2015 (4) Crimes 27 (SC)] and has submitted that since the case mainly depends upon the circumstantial evidence and entire chain is not completed, appellant may be acquitted from the charges levelled against him. 4.4 Mr. Dagli, learned Advocate has submitted that motive part was not proved. He submitted that the incident in question has occurred in the spur of the moment and there was no pre-planning nor there was any intention on the part of the accused persons to kill the deceased. He also submitted that though the presence of the accused person at the scene of offence is proved, looking to the medical evidence, it is clear that there was only one blow given by the accused. He, therefore, submitted that the trial Court has committed an error in convicting the accused for offence punishable under Section 302 of IPC. 4.5 Mr. Dagli, learned Advocate for the appellant submitted that if the first part of the arguments is not accepted by this Court, in the alternative, without prejudice to the submissions made hereinabove, considering the injuries which are caused and is said to be the cause of death of the victim as per the evidence of doctor who performed postmortem at Ex. 54, the court may consider that the incident in question happened in a weaker moment. 54, the court may consider that the incident in question happened in a weaker moment. He submitted that considering the fact that the appellant did not intend to kill the victim or to cause such grievous injury which shall lead to her death, may consider the case of the appellant under section 304 (Part I) of Indian Penal Code. 5. On the other hand, learned APP has contended that taking into consideration the medical evidence, evidence of the complainant and other witnesses, the view taken by the trial Court is just and proper. He has further submitted that if the report of the FSL is seen, clothes were found with the blood of the deceased and PM report also shows the cause of death was due to shock due to hemorrhage following assailed injury over head and brain no interference is required to be made in the impugned judgment and order. 5.1 Lastly, he has submitted that the learned trial Judge has not committed any error while imposing the sentence on accused and, therefore, no interference is called for in the present appeal. 6. We have heard the learned Counsel for the respective parties. We have also perused the records and proceeding in the context of arguments advanced before us. We have also gone through the impugned judgment as well as evidence on record. 7. If the evidence of the prosecution witnesses is taken into consideration, the most vital piece of evidence is of P.W. 3, who is not the relative of the complainant and was doing labour work. Further, P.W. 3 had no animosity either with the complainant or the accused and if the deposition of this witness is seen, he is a natural witness and his evidence is trustworthy and reliable and if the evidence of this witness is seen, he has seen Raja Arjan going behind deceased Kala and had come back after about half an hour having armed with blood stained Dhariya in his hand. He has further deposed that Kala Haji after drinking water from the carbo, he had gone to the southern side at his work place and five minutes thereafter, he heard the shouts of motorcycle. He has further deposed that Kala Haji after drinking water from the carbo, he had gone to the southern side at his work place and five minutes thereafter, he heard the shouts of motorcycle. He has further deposed that he having doubt of something uncertain happened, he had gone to the side from accused had come for ten minutes, he found the dead body of deceased bleeding from the head and he was scared and returned back to his place of work. Witness has further deposed that he had thereafter gone to Desalpar and talked to his boss, Shamji Madev, P.W. 7 about the occurrence of incident, however his evidence does not corroborate with the say of P.W. 3. 8. Now, if the medical evidence is seen, injury with the Dhariya is established, therefore, it is clear that this is a case of murder. The cause of death shown in the report is cardio-respiratory arrest due to shock due to hemorrhage following associated injury over head and brain. Therefore, it is clear that this injury is the reason for death of the deceased. Therefore, we are now required to consider the submission of learned advocate for accused as to whether the offence falls within Section 302 or 304, Part-I of IPC. Taking into consideration medical evidence, it is clear that only one injury is the reason for death of the deceased, therefore, it leaves a room for the accused to argue that this is not a case for Section 302. Only one injury on the head of the deceased is the reason for death. Therefore, the trial Court has not committed any error in convicting the accused, however, looking to the nature of the injury, it can be said that the accused is guilty of offence under Section 304, Part I of IPC and not for the offence under Section 302 of IPC. 9. We are also required to consider the facts that the incident in question took place on 22.2.2006, ten years have passed and the offence has happened in the spur of the moment and there was no intention on the part of the accused persons to commit the offence. 10. From the above facts and circumstances of the case what is apparent is the lack of pre-meditation and intention to kill and a reason for the appellant being provoked. 10. From the above facts and circumstances of the case what is apparent is the lack of pre-meditation and intention to kill and a reason for the appellant being provoked. However, the fact remains that the offence is said to have been committed. Therefore, while we are inclined to hold that the offence had taken place as alleged by the prosecution we have a reason to say that the nature of offence would fall under exception to section 300. We are therefore inclined to alter the charge and the sentence from one under section 302 to section 304 (Part I) and convict the appellant for the offence under section 304 (Part I) and sentence him to imprisonment for a period of ten years. 11. In the result, present appeal is partly allowed. The judgment and order rendered in Sessions Case No. 32 of 2006 on 20/09/2007 by the learned Additional Sessions Judge, Fast Track Court, Anjar at Kutchh, convicting the appellant-original accused for the offence punishable under Sections 302 of the Indian Penal Code, is altered to one punishable under Section 304 Part-I of the Indian Penal Code. The appellant-original accused shall undergo rigorous imprisonment of ten years for the said offence and the period of sentence already undergone shall be considered for remission of sentence. So far as conviction and sentence for the offence punishable under Section 135 of the Bombay Police Act is concerned, the same is hereby confirmed. The bail bond and surety of appellant-original accused, shall stand cancelled and he is directed to surrender before the Jail Authorities concerned, within a period of twelve weeks from today to serve the remaining sentence. R & P to be sent back to the trial Court forthwith. Yadi of this Farad shall be forwarded to the Jail Authorities immediately.