JUDGMENT : K.S. Jhaveri, J. 1. This appeal is preferred against the judgment and order dated 17.06.2011 passed by learned 4th Additional Sessions Judge, Deesa, Camp at Deodar in Sessions Case No. 170 of 2008, whereby the accused was held guilty for offence punishable under Section 302 of the Indian Penal Code (for short, "IPC") and ordered to undergo rigorous imprisonment for life and to pay fine of Rs. 3,000/- and, in default of payment of fine, the accused was ordered to undergo further rigorous imprisonment for six months. For the offence punishable under Section 504 of IPC also, the accused was convicted and ordered to undergo rigorous imprisonment for six months and to pay fine of Rs. 500/- and, in default of payment of fine, the accused was ordered to undergo further rigorous imprisonment for two months. However, the accused was acquitted from the charge of offence punishable under Section 135 of the Bombay Police Act. 2. The facts in brief giving rise to the filing of present appeal are as under:-- 2.1. On 23.8.2008 at about 6 p.m. in the evening, the accused asked for food from his sister-in-law Champaben, however, since she did not give it the accused took up a quarrel with her. The accused got angry and given a blow on the head of the deceased with an axe. She succumbed to such injury. With these allegations, a complaint came to be filed against the accused. 2.2. On complaint being filed, investigation was carried out and the accused came to be arrested. At the end of investigation, charge-sheet was filed against the accused before the Magistrate Court. Since the offence was exclusively triable by the Court of Sessions, the case was committed to Sessions Court and, ultimately, trial was initiated and charge came to be framed. The accused pleaded not guilty and claimed to be tried. 2.3. During the trial, the prosecution had examined following witnesses:-- Sr.No. Name Exh. 1 Harchandbhai Ratnabhai Valmiki, complainant. 9 2 Kasumbiben Ratnabhai Valmiki. 11 3 Kasturabhai Vanabhai Parmar. 16 4 Child witness, Jagdishbhai Ravjibhai Valmiki. 16/A 5 Ravjibhai Dharmabhai Valmiki. 17 6 Udanath Mohannath. 18 7 Raishkhan Muradkhan. 17/A 8 Tejabhai Dharmabhai. 23 9 Bhurabhai Vanabhai. 24 10 Jayprakash Rambhai, PSI. 26 11 Bhikhuji Chanduji Vaghela, PSI. 33 2.4. The prosecution had also produced and relied upon following documentary evidence:-- Sr.No. Description Exh. 1 Complaint. 10 2 Inquest panchnama. 16/A 5 Ravjibhai Dharmabhai Valmiki. 17 6 Udanath Mohannath. 18 7 Raishkhan Muradkhan. 17/A 8 Tejabhai Dharmabhai. 23 9 Bhurabhai Vanabhai. 24 10 Jayprakash Rambhai, PSI. 26 11 Bhikhuji Chanduji Vaghela, PSI. 33 2.4. The prosecution had also produced and relied upon following documentary evidence:-- Sr.No. Description Exh. 1 Complaint. 10 2 Inquest panchnama. 12 3 Panchnama of the place of offence. 13 4 Panchnama of the clothes of dead body. 15 5 PM report. 16 6 Panchnama of physical condition of the accused. 18 7 Report of FSL. 30 8 Serological report of FSL. 31 9 Postmortem report. 35 10 Notification issued by District Magistrate. 37 2.5. At the end of trial, the Court below recorded further statement of the accused 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 appeal is preferred before this Court. 3. At the time of hearing of this appeal, Ms. Kiran Pandey, learned advocate for the appellant-original accused has taken us through the evidence and tried to establish that the prosecution has miserably failed to prove its case against the appellant. She submitted that there is no eye witness to the incident. She also submitted that there is no substantive piece of evidence connecting the accused with the offence. She submitted that the present case is based on circumstantial evidence and the prosecution has failed to complete the chain, therefore, the accused is wrongly convicted by the trial Court. She submitted that a child witness has been examined as an eye witness, however, it seems that he has a tutored witness and he is not an eye witness. She further submitted that there is no other evidence to connect the accused with the present offence. However, after arguing the matter at some length, she fairly conceded that in view of the medical evidence and statements of other witnesses, though the offence against the accused can be said to have been proved, she is arguing only on the quantum of punishment. She submitted that there was no motive on the part of the accused to commit the offence and there was no pre-planning and the incident has happened in the heat of the moment. She submitted that there was no motive on the part of the accused to commit the offence and there was no pre-planning and the incident has happened in the heat of the moment. She submitted that even if the case of the prosecution is believed, it has failed to prove any intention on the part of the accused. She, therefore, submitted that the trial Court has committed an error in convicting the accused for offence punishable under Section 302 of IPC and at the most it would fall under Section 304, Part-I of IPC. She submitted that considering all these circumstances, offence alleged against the accused may be converted to Section 304, Part-I from that of Section 302 of IPC. 4. On the other hand, Mr. Pranav Trivedi, learned APP appearing for the State has submitted that the order of conviction recorded against the appellant-accused is just and proper and he has supported the conviction recorded by impugned judgment. 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 and no interference is called for by this Court. He further submitted that this is a pre-planned murder as at the time of commission of offence, son of the deceased, who is examined in the present case as PW-4, was deliberately sent out by the accused to bring bidi. Not only that after seeing the incident, the child witness has immediately informed about it to PW-6 and PW-8. Therefore, it is established that the accused was lastly seen with the deceased. He, therefore, submitted that the learned trial Judge has not committed any error while imposing the sentence on the accused and no interference is called for in the present appeal. 5. We have heard Ms. Kiran Pandey, learned advocate for the appellant-original accused and Mr. Pranav Trivedi, learned APP for the State. We have also gone through the impugned judgment as well as evidence on record. In the present case, no medical officer is examined by the prosecution, however, postmortem report is produced on record and it is admitted by the other side. We have gone through the postmortem report of the deceased. The reason for death is stated to be shock due to head injury. Therefore, this is a case of unnatural death and it will amount to culpable homicide. We have gone through the postmortem report of the deceased. The reason for death is stated to be shock due to head injury. Therefore, this is a case of unnatural death and it will amount to culpable homicide. Not only that Jagdishbhai Ravjibhai Valmiki, PW-4, child witness, has stated in his deposition that he was asked by the accused to bring bidi and when he came back, he had seen his mother in injured condition and the accused ran away from the spot. This incident was also narrated by this child witness before PW-6 and PW-8 immediately after the incident. Therefore, presence of the accused is established at the scene of offence. However, since learned advocate for the accused has argued the matter only on the quantum of punishment, we are not discussing the evidence in detail and we have considered the matter only this limited point. We are now required to consider the submission of learned advocate for the accused as to whether the offence falls within Section 302 or 304, Part-I of IPC. As per column No. 19 of the postmortem report, there were three injuries on the head of the deceased. As per the case of the prosecution, the incident had happened when the accused asked for food and the deceased did not give it to him. The prosecution has failed to prove the motive behind the incident and it cannot be said that the offence was committed with pre-planning. It seems that the accused got angry and given axe blow on the head of the deceased. Therefore, in our view, 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. Accordingly, this Criminal Appeal is required to be allowed by holding the accused guilty for offence under Section 304, Part I of IPC and not for offence under Section 302 of IPC and sentence imposed upon him is required to be reduced to ten rigorous years imprisonment instead of life imprisonment. 6. For the foregoing reasons, this Criminal Appeal is partly allowed. 6. For the foregoing reasons, this Criminal Appeal is partly allowed. The impugned judgment and order dated 17.06.2011 passed by learned 4th Additional Sessions Judge, Deesa, Camp at Deodar in Sessions Case No.170 of 2008 is modified and instead of offence punishable under Section 302 of IPC, the appellant-original accused is held guilty for the offence punishable under Section 304, Part-I of IPC and ordered to undergo ten years' rigorous imprisonment. The period of sentence already undergone by the accused be given set off to him. Remaining part of the impugned judgment shall remain unaltered. Bail bond, if any, stands cancelled. Record and Proceedings be sent back to the concerned trial Court forthwith.