JUDGMENT : B.R. Gavai, J. Being aggrieved by the judgment and order passed by the learned Additional Sessions Judge, Amravati dated 23.9.2013 in Sessions Case No. 28/12, thereby convicting the appellant for the offence punishable under Sections 302 of the Indian Penal Code and sentencing him to suffer imprisonment for life and to pay a fine of Rs.5000/and in default, to suffer further S.I. for one year, the appellant has approached this Court. 2. The prosecution case, in brief, as could be gathered from the material placed on record is as under : The accused Ramesh and victim Rajendra are cousin brothers. They used to reside in the vicinity of each other at village Kholapur. There was a dispute amongst them about partition of land. It appears that a civil dispute was also pending between them with regard to that matter. On 26.10.2011 at around 5.30 p.m. the accused gave abuses to the victim leading to an altercation between them in front of their house. The accused thereafter went to his house and brought one axe from his house and gave blow of it on the head of victim Rajendra. Victim fell down and became unconscious. He was initially taken to P.H.C. Kholapur and since no doctor was available he was taken to Civil Hospital, Amravati. Since he was serious, he was taken to hospital of one Dr. Sawdekar and thereafter again taken to Civil Hospital, Amravati where he died on the next day in morning. On the day of the incident itself, an oral report came to be lodged by PW.2 Meena, the wife of the deceased below Exh. 26. On the basis of the said oral report, an FIR came to be registered vide Crime No. 66/11 for the offence punishable under Section 307 of the Indian Penal Code. After the death of the deceased, the same was converted into offence punishable under Section 302 of the Indian Penal Code. The investigation was set in motion. Upon completion of investigation, the charge-sheet came to be filed in the Court of learned J.M.F.C., Bhatkuli. However, since the case was exclusively triable by the Court of Sessions, the same came to the committed to the Court of learned Sessions Judge, Amravati. 3. The learned trial Judge framed the charges below Exh. 3 against the accused for the offence punishable under Section 302 of the Indian Penal Code. However, since the case was exclusively triable by the Court of Sessions, the same came to the committed to the Court of learned Sessions Judge, Amravati. 3. The learned trial Judge framed the charges below Exh. 3 against the accused for the offence punishable under Section 302 of the Indian Penal Code. The accused pleaded "not guilty" and claimed to be tried. At the conclusion of the trial, the learned trial Judge recorded the order of conviction and sentence against the present appellant as aforesaid. Being aggrieved by the order of conviction and sentence, the present appeal has been filed by the appellant. 4. Ms. F.N. Haidari, the learned Counsel appearing on behalf of the appellant, submits that all the witnesses are related to the deceased and as such, are interested witnesses. She further submits that there are various discrepancies in the evidence of the witnesses. She further submits that from the evidence of PW.5 Mohit, the very presence of the first informant PW.2 Meena on the spot is doubtful. She further submits that the testimony of PW.6 Vikas is recorded after six days and as such, the deposition of this witness is not free from doubt. The learned Counsel submits that in so far as the finding of the blood stains on the accused is concerned, the perusal of the seizure panchnama would reveal that there is no evidence regarding sealing of the said article and as such, the said circumstance cannot be used against the appellant. She, therefore, submits that the appellant is entitled to be acquitted and the appeal deserves to be allowed. 5. Mrs. M.H. Deshmukh, the learned Additional Public Prosecutor appearing on behalf of respondent, submits that in the present case there is a direct evidence of eyewitness available. She submits that there is nothing to disbelieve the testimony of these witnesses. It is further submitted that the ocular testimony of the eyewitnesses is supported by the circumstantial evidence of the blood group 'O', i.e. of the deceased being found on the clothes and axe of the appellant. She, therefore, submits that no interference is warranted in the present appeal and as such, the appeal deserves to be dismissed. 6. With the assistance of the learned A.P.P. and the learned Counsel for the appellant, we have scrutinised the entire evidence. 7. She, therefore, submits that no interference is warranted in the present appeal and as such, the appeal deserves to be dismissed. 6. With the assistance of the learned A.P.P. and the learned Counsel for the appellant, we have scrutinised the entire evidence. 7. Since the factum regarding the death of the deceased being homicidal is not seriously in dispute, it will not be necessary for us to consider the evidence in that regard. The present case is a case of direct evidence. There are four eyewitnesses available. PW.2 Meena – the wife of the deceased is the first informant. She states in her evidence that at the time of the incident, her father-in-law was sitting in front of the entrance door of the house and her husband was standing there. Mohit was playing there in front of the house. There was dispute between her husband and the accused on the point of land of their house. The accused started giving abuses to her husband. Her husband told him that as it was Diwali day, he should not give abuses. Thereafter the accused went to his house which was beside the house of first informant and brought the axe. He then gave a blow of axe on the head of her husband. Her husband fell with bleeding injuries. She was standing near the door of her house. As the incident occurred, her father-in-law rushed on the spot, her brother-in-law Vikas also came there. Neighbourers also rushed there. She wrapped towel and shawl on the head of her husband. Thereafter, they took her husband on a cart to Primary Health Centre, Kholapur. Since the doctor was not there, Ashok Raut and Vinod Somwanshi took her husband in jeep to General Hospital, Amravati. She along with her brother-in-law Vikas went to Kholapur Police Station and reported about the incident. On the next day of the incident, her husband was taken to private dispensary of Dr. Sawdekar at Amravati. Dr. Sawdekar again sent her husband to the Civil Hospital at Amravati. At the Civil Hospital, her husband was declared dead. Though she has been vigorously cross-examined, nothing damaging has come in her evidence. Though in her evidence, she states that her husband was not taking liquor, this has been contradicted in the evidence of her son PW.5 Mohit, who has admitted that his father used to drink liquor. At the Civil Hospital, her husband was declared dead. Though she has been vigorously cross-examined, nothing damaging has come in her evidence. Though in her evidence, she states that her husband was not taking liquor, this has been contradicted in the evidence of her son PW.5 Mohit, who has admitted that his father used to drink liquor. However, we do not find that such a minor contradiction would be sufficient enough to disbelieve her evidence and moreover so when it is duly corroborated by the other evidence. It is further to be noted that the First Information Report is lodged within a short period of about an hour. In the First Information Report, she has named the appellant and as such, we find that the FIR also corroborates the ocular testimony of this witness. 8. PW.3 Wasudeo is the father of the deceased. He states in his evidence that he was sitting in front of his house. Ramesh came there and gave abuses to Rajendra. Then the accused Ramesh gave blow of axe on the head of Rajendra and so Rajendra fell down. Though in his cross-examination, he has given certain answers which may be useful to the defence, it will have to be remembered that the witness was 80 years old and some sort of discrepancies in his evidence would be natural because of his age. 9. PW.6 Vikas is the brother of the deceased. He states that his house is also near the house of the accused and the deceased. He saw from his window that the accused was giving abuses to the deceased Rajendra. Then he came out of house. He found that accused went to his house and returned there with one axe in his hand. Accused then gave one blow of axe on the head of Rajendra. Therefore, Rajendra fell down. He rushed there. Accused was seen standing there with an axe. He thereafter narrates the version regarding the deceased being taken to hospital and he going to Police Station to lodge FIR with PW.2 Meena. Though this witness has also been vigorously cross-examined, nothing damaging has come in his evidence. It could thus be seen that the evidence of this witness also corroborates the version given by PW.2 Meena. 10. The evidence of PW.5 Mohit, who is the son of the deceased would be vital. Though this witness has also been vigorously cross-examined, nothing damaging has come in his evidence. It could thus be seen that the evidence of this witness also corroborates the version given by PW.2 Meena. 10. The evidence of PW.5 Mohit, who is the son of the deceased would be vital. He states in his evidence that at the time of the incident he was sitting in front of his house. He further states that at that time his grandfather was also present there. He states that incident took place in front of his house. The accused gave abuses to his father. His father told accused to keep quiet. The accused thereafter went to his house and brought one axe. Accused gave one blow of axe on the head of his father. Then blood came out of the head of his father from the injured portion and his father fell down unconscious. This witness has also been thoroughly cross-examined. However, in so far as the incident of assault by the accused on the head of the deceased is concerned, his testimony has remained unshaken. It could thus be seen that all these four witnesses corroborate the version of one another. Not only that, but the presence of each other is also brought on record in their respective testimonies. We are, therefore, of the considered view that no error could be found in the finding of the learned trial Judge that it is the present appellant who is author of the crime. 11. In view of the availability of direct evidence which we find to be trustworthy, reliable and cogent, it will not be necessary for us to deal with the other contentions with regard to circumstances of recovery of axe, clothes of the appellant and the finding of the blood of 'O' group thereon. 12. That leaves us with the question as to whether the conviction under Section 302 of the Indian Penal Code needs to be maintained or altered to some other offence. It has come in the evidence of all the witnesses that there was a previous enmity between the deceased and the appellant. As held, previous enmity is a double-edged weapon. On account of previous enmity, false implication or exaggeration cannot be ruled out. As already discussed here in above, the evidence of PW.5 Mohit is vital in the present case. It has come in the evidence of all the witnesses that there was a previous enmity between the deceased and the appellant. As held, previous enmity is a double-edged weapon. On account of previous enmity, false implication or exaggeration cannot be ruled out. As already discussed here in above, the evidence of PW.5 Mohit is vital in the present case. Though this witness has stuck up to the version regarding assault on the deceased by the appellant, he has admitted in his cross-examination that both the accused and his father had quarrelled after drinking liquor. He has further admitted that since on the day of the incident his mother had gone out of the house, due to anger, his father had drunk much liquor. It could thus be seen that the possibility of the appellant in a sudden fight in a heat of passion upon a sudden quarrel making the assault cannot be ruled out. It is to be noted that though PW.5 Mohit has admitted that his father had consumed liquor, the same is denied by PW.2 Meena and PW.6 Vikas. It could thus be seen that these witnesses have not disclosed the entire version. However, it appears that PW.5 Mohit who is a teenager of 13 years has spoken the truth. From the perusal of his evidence, it would reveal that both the accused and the deceased had consumed alcohol and after that there was a fight between them. It is to be noted that even the other witnesses also state that there was a quarrel and after the quarrel the accused went in his house which was adjacent to the house of the deceased, brought the axe and assaulted the deceased on his head. 13. It is further to be noted that the accused has given only a single blow. It is not as if after the deceased falling down, he has taken undue advantage or acted in a cruel or unusual manner. It is further to be noted that it is only after the quarrel he went to his house and brought the axe, which was very much available in the house. It is thus clear that the prosecution has failed to prove a case of premeditation to cause the death of the deceased. It is further to be noted that it is only after the quarrel he went to his house and brought the axe, which was very much available in the house. It is thus clear that the prosecution has failed to prove a case of premeditation to cause the death of the deceased. We may gainfully refer to the judgment of the Hon'ble Apex Court in the case of Ravindra Shalik Naik and others v. State of Maharashtra reported in 2009 ALL MR (Cri) 1798 (S.C.). Their Lordships observed in paragraph no. 6 as under : ".......The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight, (c) without the offender's having taken undue advantage or acting in a cruel or unusual manner, and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the 'fight' occurring in Exception 4 to Section 300 IPC is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts or each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation." It could thus be seen that in the present case, all the four ingredients that the act was done without premeditation, it was done in a sudden fight, that it was without the offender having taken undue advantage or acting in a cruel or unusual manner and that the fight of the accused was with the deceased are clearly made out. It could thus be seen that there was no time for the passions to cool down, inasmuch as immediately after the quarrel the deceased went inside his house which was just adjacent, brought the axe and assaulted him. We are, therefore, of the considered view that the offence would not come within the ambit of Section 302 but under Part I of Section 304 of the Indian Penal Code. 14. In the result, the appeal is partly allowed. The order of conviction under Section 302 of I.P.C. is altered to one under Part I of Section 304 of the Indian Penal Code. For the said offence, the accused shall suffer rigorous imprisonment for a period of seven years. Rest of the order regarding fine, etc. is maintained.