JUDGMENT : Biren Vaishnav, J. 1. Original accused No. 1 of Sessions Case No. 173 of 2010 has preferred this appeal having been convicted and sentenced for offence punishable under section 302 of the Indian Penal Code. The conviction and sentence was handed down by the learned 6th Additional Sessions Judge, Kheda at Nadiad by a judgment and order dated 30.09.2011. 2. On 16.09.2010, Aniket Dabhi, who was also the complainant, was going to his house at around 08.30 in the evening. When he was standing in front of his house, original accused No. 1 - Kiranbhai Manilal Dabhi who was opposite to Aniket started abusing him. Aniket therefore went to him and tried to pacify him. Before he could react, accused No. 1 Kiran picked up a rod lying near his house and tried to hit Aniket with the rod. Aniket ducked and therefore escaped being hurt from such an attack. At that point of time, accused No. 1's father Manilal Dabhi and accused No. 1's mother Savitaben Dabhi came out from their house. Manilal had an iron pipe with which he hit Aniket on his head. Savitaben who was carrying a stick also hit Aniket with the stick. Hearing a commotion outside their house, Aniket's father Andreas came out from his house. Accused No. 1 was holding an iron pipe and hit the complainant's father on his head near the right ear. Aniket's father fell unconscious. Kanubhai Peterbhai Macwan and others intervened. Both Aniket and his father were shifted to Nadiad Civil hospital. Aniket was discharged from hospital after preliminary treatment. However, his father was shifted to Ahmedabad Civil hospital. This was the narration of Aniket in his complaint filed before the police authorities which is at Ex. 31. A charge was framed accordingly at Ex. 6 for implicating the accused Nos. 1, 2 and 3 i.e. Kiranbhai Dabhi, his father Manilal Dabhi and mother Savitaben Dabhi for offences under section 323 read with section 114 of the Indian Penal Code. Since Aniket's father Andreas Paul Dabhi succumbed to his injuries on 19.09.2010, four days after the incident, accused No. 1 was also charged for offence punishable under section 302 read with section 114 of the Indian Penal Code. The three accused were also charged for offences punishable under section 504 of Indian Penal Code. 3. Since Aniket's father Andreas Paul Dabhi succumbed to his injuries on 19.09.2010, four days after the incident, accused No. 1 was also charged for offence punishable under section 302 read with section 114 of the Indian Penal Code. The three accused were also charged for offences punishable under section 504 of Indian Penal Code. 3. By judgment and order dated 30.11.2011 rendered by the learned Sessions Judge, while the accused No. 1 was convicted for offences punishable under section 302 of the Indian Penal Code, the accused Nos. 2 and 3 respectively were convicted for offences punishable under section 323 read with section 114 of the Indian Penal Code. The accused No. 1 having been so convicted under section 302 of the Indian Penal Code is, therefore, before us by way of this appeal. 4. The complainant who was also an injured eye witness, namely Aniket has been examined as P.W. 3 at Ex. 30. According to the version in his testimony, he was staying with his father Andreas and mother Latticia in Christian Colony. On 16.09.2010, at around 08.30 in the evening, when he was returning from Vadtal and had just reached his home, Kiranbhai the accused called him and started abusing him. When Aniket tried to pacify him, Kiran picked up an iron rod lying by the side and tried to hit Aniket. Aniket ducked and therefore escaped. At that point of time, Manilal - Kiranbhai's father and Savitaben - Kiranbhai's mother came out of the house with iron pipe and stick respectively and hit Aniket on the head. Aniket's parents on hearing shouts outside, came out of the house. Their neighbour Kanubhai Macwan and his wife Sarojben too came out. All the four tried to intervene and tried to stop Kiranbhai from attacking Aniket. Kiranbhai then, with the iron pipe in his hand, hit Aniket's father - Andreas with a pipe on the right side of the head above the right ear. Andreas fell unconscious. Both he and his father were shifted to the hospital. According to the testimony of this witness, his father succumbed to the injuries sustained on 19.09.2010 at the Ahmedabad Civil hospital. Andreas fell unconscious. Both he and his father were shifted to the hospital. According to the testimony of this witness, his father succumbed to the injuries sustained on 19.09.2010 at the Ahmedabad Civil hospital. This witness further stated that three and half years before the incident, when their house was under construction, they were staying as tenants at Kantibhai's house and it was at that point of time that there were some quarrels between the family of the accused and the family of this witness. He identified the accused Kiranbhai who was present before the court. The witness has been extensively cross examined on the nature of injuries sustained and the weapons used and on the question as to which weapon was used to attack him and his father. 5. Kanubhai Peterbhai Macwan - P.W. 4 who is examined at Ex. 33 is also an eye witness to the incident. He also confirms the version as narrated by the complainant Aniket that on 16.09.2010 when Aniket was standing outside his house, Kiranbhai called him and abused him. With an iron pipe lying nearby, he tried to attack Aniket. Thereafter, accused Nos. 2 and 3 also came there and attacked Aniket with iron pipe and stick respectively. At that time, Andreas and Sheelaben - wife of Aniket intervened at which point of time, Kiranbhai hit Andreas with the iron pipe on the right side of the head above the ear. He along with his wife then carried Aniket and Andreas to Nadiad Civil hospital. Aniket was discharged after preliminary treatment. However, looking to the condition of Andreas, he was shifted to Ahmedabad Civil hospital. 5.1 This witness has been extensively cross examined. Suggestions put to him that he was not an eye witness to the incident have been denied by him. In his cross examination, it is further borne out that the deceased sustained injuries when Kiranbhai had tried to attack Aniket and at which point of time the parents together with the present witness tried to intervene. 6. P.W. 1 - Dr. Dineshbhai Madhukar at Ex. 15 is the doctor who initially treated both the complainant Aniket and his father Andreas. According to this witness, Andreas was unconscious and therefore the history was narrated by his son Aniket. 6. P.W. 1 - Dr. Dineshbhai Madhukar at Ex. 15 is the doctor who initially treated both the complainant Aniket and his father Andreas. According to this witness, Andreas was unconscious and therefore the history was narrated by his son Aniket. In the history so recorded, Aniket had stated that his father Andreasbhai had sustained injuries on being hit by accused Kiran, Manilal and Savitaben with a pipe and stick. The injuries that Andreas sustained were recorded by this witness as under: "(1) Lt. Ear Pinna CLW Mid Pinna transverse 4 cm x 0.5 cm skin cut (2) Lt. Lateral Maxilla swelling 4 x 4 cm superficial CT SCAN (1) fracture Lt. Mastoid bone and base of skull haemorrhagic contusion noted Lt. Cerebellar hemisphere with acute large sub arachnoid bleed. Large haemorrhagic contusion noted at Rt cerebral hemisphere. Acute large sub dural haematoma over Rt cerebral convexity and inter hemispheric tissue." 6.1 Aniket also was treated by this doctor. He also in his history given to this doctor had stated that Kiranbhai, Manilal and Savitaben had attacked him with pipes and stick. According to the doctor, the injuries that were caused were as a result of being hit by a hard and blunt substance. The injuries that Aniket sustained were not grievous and were not serious. He also mentioned the injuries that Aniket had sustained as under: "(1) Rt. Skull super anterior contusion trauma 3 cm x 2 cm red colour" 6.2 This witness has been cross examined. He in his cross examination agreed that though the injuries sustained on the head could be grievous and dangerous but they cannot always be fatal. He also denied a suggestion that he had given a certificate or had noted in the case papers to the effect that the injuries that Andreasbhai sustained were sufficient to cause death. 7. Dr. Jagdishkumar Khodabhai Solanki, P.W 2 was examined at Ex. 23. He is the Medical Officer who carried out the postmortem of deceased Andreas. He noted that Andreas sustained injuries on 16.09.2010 and succumbed to his injuries four days thereafter i.e. 19.09.2010. The postmortem report is produced at Ex. 27. According to the doctor, the injuries that the deceased sustained on the head were sufficient to cause death. 8. Based on this evidence, whether the convict's conviction and sentence deserves to be maintained is an issue. The postmortem report is produced at Ex. 27. According to the doctor, the injuries that the deceased sustained on the head were sufficient to cause death. 8. Based on this evidence, whether the convict's conviction and sentence deserves to be maintained is an issue. As is evident from reading the First Information Report together with the testimony of the complainant - P.W. 3 examined at Ex. 30, accused Kiranbhai was standing in front of his house. When Aniket was passing by, he called him across the road and started abusing him. When Aniket tried to pacify him, he picked up an iron rod lying nearby and tried to hit Aniket. Aniket ducked and therefore escaped being hit. Accused Nos. 2 and 3 came out of the house and attacked Aniket with pipe and stick. Hearing the commotion outside, Aniket's father Andreas and wife Sheelaben came out. In the melee that ensued, Aniket's father Andreas was hit by accused No. 1 on the right side of the head above the ear. He fell unconscious. 8.1 The genesis of the incident as it occurred possibly was at first point of time was when Kiranbhai tried to abuse Aniket who then subsequently tried to pacify him. Aniket's parents on hearing the commotion outside came out at which point of time, at the spur of the moment without any pre-meditation the accused No. 1, when Andreas tried to intervene, hit him with a pipe on the head. As a result of the injuries sustained by the deceased, he fell unconscious and was therefore shifted to the Nadiad Civil hospital. After some preliminary treatment he was then taken to Ahmedabad Civil hospital. He died four days after the incident on 19.09.2010. 9. Medical evidence has come on record as is evident from the testimony of Dr. Dinesh Madhukar - P.W. 1 who stated that the head injury that the deceased sustained would be grievous and dangerous but was certainly not fatal. A suggestion that such injuries were sufficient to cause death was denied by him in his cross examination. 10. When all the factors are collectively appreciated, based on the testimonies of the complainant and other witnesses, the incident as it unfolded, Kiranbhai, who otherwise had only Aniket at the center of his ire, when Andreas intervened, at the spur of the moment hit Andreas with an iron pipe on the head. 10. When all the factors are collectively appreciated, based on the testimonies of the complainant and other witnesses, the incident as it unfolded, Kiranbhai, who otherwise had only Aniket at the center of his ire, when Andreas intervened, at the spur of the moment hit Andreas with an iron pipe on the head. Due to the injuries sustained by Andreas, he succumbed to the said injuries four days after the incident. Medical opinion on record suggests that though the injuries could be grievous or serious they were not fatal enough or sufficient enough to cause death. Andreas sustained injuries as a result of being attacked with a pipe at the hands of accused Kiranbhai who did so at the spur of the moment. The act of therefore hitting the deceased with an iron pipe may have been done with a knowledge that it is likely to cause death but it cannot be said to be one that was so done with an intention to cause death or such bodily injury as is likely to cause death. In light of the evidence on record, therefore, the conviction of the appellant is required to be altered to one under section 304 (Part II) of the Indian Penal Code. 11. Accordingly, the conviction of the appellant-original accused No. 1 under Section 302 of the Indian Penal Code vide judgment and order dated 30.09.2011 passed by the 6th Additional Sessions Judge, Kheda at Nadiad in Sessions Case No. 173 of 2010 is altered to one under Section 304 (Part II) of Indian Penal Code. The appellant - original accused No. 1 is ordered to undergo rigorous imprisonment for a period of seven years under section 304 (Part II) of Indian Penal Code. The amount of fine imposed by the court below is reduced to Rs. 10,000/-. If the appellant has served out the period of sentence of seven years, he shall be set at liberty forthwith if not required in any other case. The judgment and order dated 30.09.2011 is modified accordingly. Appeal is allowed to the aforesaid extent. R & P, if lying with this court, shall be returned to the trial court forthwith. Appeal Partly Allowed