JUDGMENT : Akil Abdul Hamid Kureshi, J. 1. This appeal is filed by the original accused to challenge the judgment of the learned Additional Sessions Judge, Khambhalia dated 04.08.2012 in Sessions Case No. 57 of 2010. 2. As per the prosecution, on 07.09.2010, the deceased Anil was standing outside a pan shop near his house. Accused Vrajesh alias Lalo Kiritbhai was also there. The two had a quarrel about Vrajesh taking Anil's nephew to a fun fair and spending away his money there. The accused thereupon went to his house, brought a sharp edged instrument and gave three blows to Anil on the head causing his death. A charge to this effect was framed at Ex. 11 alleging commission of offences under sections 302 and 504 of IPC against the accused. The learned Additional Sessions Judge, by the impugned judgment, convicted the accused for the said offences and sentenced him to life imprisonment. Fine was also imposed. Hence, this appeal. 3. We may record the gist of the evidence. Pravinchandra Dhirajlal, P.W. 4, Ex. 39, the elder brother of the deceased Anil was also the first informant. He deposed that in the night of 07.09.2010, he had gone to a pan shop in the market where he saw deceased Anil and accused Vrajesh quarreling and using bad words. The accused then went home upon which he inquired from Anil what was the cause for the quarrel. Anil told him that he was admonishing the accused for taking the son of Dipakbhai (their brother) to a fun fair. According to the witness, sometime after that Vrajesh came to the scene of the incident with a sharp instrument (The witness referred to this as a part of an instrument which is used for cutting beetle nuts which is ordinarily kept in many households in the state. This instrument comes in different sizes and is made of metal. It comprises of a flat base which is joined with a long, hard and sharp blade extending to a handle. The witness referred to this sharp blade with a handle as the instrument that the accused had brought from his house). He then gave two or three blows to Anil on his head behind the ears. The accused ran away from the place. Anil collapsed and died on the spot. He had lodged the FIR which is produced at Ex. 40. He then gave two or three blows to Anil on his head behind the ears. The accused ran away from the place. Anil collapsed and died on the spot. He had lodged the FIR which is produced at Ex. 40. He identified the murder weapon, the clothes of deceased which he was wearing at the time of the incident and the accused who was present before the court. 3.1 In a rather lengthy cross examination, much of which was irrelevant, the witness clarified that his other brother Dipak lived separately from him but his house was barely at a distance of about 20 feet. Deceased Anil and Dipak lived next to each other. To reach their house from his house, it would take barely about 5 minutes. He also stated that accused Vrajesh did not live next to his house but at a distance of about ten minutes on foot. He stated that he goes to Nehal pan shop (where the incident took place) for last 20 years. The owner of the pan shop was also present when the incident took place. 4. Vitthal Pitroda, P.W. 11, Ex. 68 had seen the first part of the quarrel between the accused and the deceased. He deposed that his father's shop is situated opposite Nehal pan shop. He knew the accused as well as the deceased. On the night of the incident, he and his other friends were standing near Nehal pan shop. Accused Vrajesh was also present there. They were all chatting. At that time, the deceased Anil came. He first had a masala from the shop and then accused Lala and deceased Anil had a quarrel. Lala got extremely angry and became uncontrollable. Then the pan shop was shut and he therefore left to go to his house. On the way, he learnt that the murder was committed. 5. Dr. Dipak Meghpara, P.W. 3, Ex. 22 had carried out the postmortem on the night of 07.09.2010. In the postmortem note, Ex. Lala got extremely angry and became uncontrollable. Then the pan shop was shut and he therefore left to go to his house. On the way, he learnt that the murder was committed. 5. Dr. Dipak Meghpara, P.W. 3, Ex. 22 had carried out the postmortem on the night of 07.09.2010. In the postmortem note, Ex. 23, he recorded the following injuries: "(1) A sharp cutting injury 6 inch length x 1 inch wide curved on (Rt) Temporal Region to midline Ear to middle of chin deep to Bone and Brain matter seen outside (2) A sharp cutting injury on lower part of Back of Neck & lower occipital region of Head curved to (Rt) side midline of Ear 3 inch length x 1 Inch wide (3) A sharp cutting injury 4 Inch length x 1 Inch wide on occipital Region of Head Horizontal (4) Bruise 3 x 3 cm on (Rt) side shoulder joint (5) A sharp cutting injury 1 x 1 cm on (lt) side Eye Brow" 5.1 Corresponding to such external injuries, he had noticed the following internal damage on the head: "Fracture of Right side Temporal & occipital Bone Fracture of Right side Temporal & occipital Bone" 5.2 In his opinion, the death occurred due to hemorrhagic shock on account of sharp, grievous cutting injury on back of neck and head and right carotid artery. He agreed that such injuries could have been caused by the muddamal article No. 6, the murder weapon. 6. The weapon was discovered at the instance of the accused under discovery panchnama, Ex. 60. The panch witness Ajitbhai Babubhai Rathod, P.W. 9, Ex. 59 supported the prosecution. The discovery panchnama would show that the accused led the panch witness and the police party to a shop of his uncle which was in closed condition. From such shop, after opening the shutter, the accused produced the said weapon which was bloodstained. 7. Ganeshbhai Kanjibhai, P.W. 14, Ex. 75 was the Investigating Officer. He gave detailed account of the investigation carried out by him. From such shop, after opening the shutter, the accused produced the said weapon which was bloodstained. 7. Ganeshbhai Kanjibhai, P.W. 14, Ex. 75 was the Investigating Officer. He gave detailed account of the investigation carried out by him. Our attention was drawn to his cross examination in which the Investigating Officer agreed that he had recorded the statement of Kishen, the son of the complainant, in which Kishen had stated that he was standing near Neha pan shop when deceased Anil and accused Vrajesh had a quarrel about spending money in the fair and thereupon Kishen had gone home to inform his father that the said two persons were fighting. His father had thereupon gone to the scene of incident. 8. Various articles collected during the course of investigation were sent for forensic analysis. The FSL report when read with the serological report, Ex. 81 would show that the deceased had blood group 'A'. Blood of the same group was found from his clothes, from the place of incident and significantly from the murder weapon also. 9. This, in a nutshell, is the evidence on record. Learned advocate for the appellant submitted that the complainant was the sole eye witness examined by the prosecution though the incident having taken place in a market place, many other witnesses would have been available. In fact the evidence of the Investigating Officer would suggest that other witnesses were available whose statements were recorded during investigation. Very presence of the complainant is doubtful. Our attention was drawn to the cross examination of the Investigating Officer in which it was suggested that the complainant was informed by his son at his residence that a quarrel was going on between the accused and the deceased. His claim, therefore, to have witnessed the entire incident including the first part of the quarrel is not reliable. Counsel submitted that in any case even as per the prosecution, the incident took place in a sudden quarrel. There was no premeditation on the part of the accused. The case, therefore, would not fall within section 302 of IPC. 10. On the other hand, learned Additional Public Prosecutor supported the judgment under challenge and submitted that there was sufficient evidence to establish the involvement of the accused. He had gone home and come back with the murder weapon clearly showing his intention. Appeal may, therefore, be dismissed. 11. The case, therefore, would not fall within section 302 of IPC. 10. On the other hand, learned Additional Public Prosecutor supported the judgment under challenge and submitted that there was sufficient evidence to establish the involvement of the accused. He had gone home and come back with the murder weapon clearly showing his intention. Appeal may, therefore, be dismissed. 11. We may assess the evidence on record. The prosecution case mainly rests on the testimony of Pravinchandra Dhirajlal, P.W. 4, Ex. 39, the elder brother of the deceased. He claims to be an eye witness. As noted, as per his version when he had gone to Nehal pan shop for his evening ritual of having bidi, he saw the accused and deceased present there. They soon started fighting. The accused left the scene of incident but returned a few minutes later with a sharp instrument and gave couple of blows behind the head of Anil. In between, he had time enough to ask his brother about the cause of the quarrel. 12. From the evidence of this witness, a few things which are not seriously in dispute emerge. These things are that the witness Pravinchandra and his brother Anil both lived in the same locality. Their houses were separate but were at a short distance from each other. Their houses were also close to the scene of incident i.e. Nehal pan shop. Pravinchandra himself was a regular visitor of the pan shop since many years. Accused Vrajesh also lived in the same locality but a little distance away. Under the circumstances, the presence of this witness at the scene of incident was natural. He cannot be said to be a chance witness. The time of the incident being post dinner time, it can be easily expected that Pravinchandra as per his daily routine would visit the pan shop for his post dinner smoke. 13. We have no reason to discard his deposition of atleast having seen the incidence of the accused giving a few blows to the deceased behind the ear. He had no axe to grind against the accused, no previous quarrel or animosity due to which he would be prompted to make false accusations. 14. Other evidence on record corroborates the evidence of this witness. For example, Vitthal Pitroda, P.W. 11, Ex. 68 was also present at the scene of incident shortly before the actual assault took place. He had no axe to grind against the accused, no previous quarrel or animosity due to which he would be prompted to make false accusations. 14. Other evidence on record corroborates the evidence of this witness. For example, Vitthal Pitroda, P.W. 11, Ex. 68 was also present at the scene of incident shortly before the actual assault took place. He was present there along with his friends. He pointed out that the accused was also present. The deceased arrived at that time and shortly thereafter a quarrel broke out between the two. The accused got angry and became quite uncontrollable. Vitthal himself left the place as the pan shop was closed down. He neither claims nor was an eye witness to the actual assault but his testimony is significant since it establishes the presence of the accused and the deceased shortly before the incident and it also establishes the bitter quarrel between the two at that time. 15. The scientific evidence also is in tune with the version of the eye witness. Dr. Dipak Meghpara, P.W. 3, Ex. 22 in his postmortem note, Ex. 23 had recorded three major injuries on the head and behind the neck which according to him could be caused by the murder weapon. The discovery of the murder weapon at the instance of the accused is one more factor to be considered. The weapon showed the presence of blood of the group belonging to the deceased. 16. Under the circumstances, we have no hesitation in accepting the version of the eye witness, P.W. 4 atleast so far as it concerns the actual assault by the accused on the deceased. It may be that he may not have seen the entire first part of the quarrel since as per the Investigating Officer, Kishen, son of the eye witness Pravinchandra in his police statement had conveyed to the effect that when the quarrel was going on, he had rushed home to inform his father about it. It was thereupon that his father had gone towards the pan shop. However, this would not totally discard the possibility of Pravinchandra having seen atleast a part of the quarrel and at any rate having seen the actual assault. 17. It was thereupon that his father had gone towards the pan shop. However, this would not totally discard the possibility of Pravinchandra having seen atleast a part of the quarrel and at any rate having seen the actual assault. 17. What thus stands confirmed through the reliable evidence on record is that accused Vrajesh and deceased Anil had a quarrel about some money matter and taking Anil's nephew to a fun fair. The accused, as pointed out by P.W. 18, Vitthal, went home, brought back the sharp instrument and gave a few blows on the head of the deceased. The series of incidents and the manner in which the actual assault took place would prevent us from giving the benefit of exception 4 to the accused. It was not a case of sudden fight. The accused had sufficient time to cool down and to take matters in his hands. He instead went home and fetched the murder weapon to return to the scene of incident few minutes later. His intention to cause serious injuries to the deceased was thus clearly manifested. The panchnama, Ex. 60 would show that this instrument had a blade which was 9 inches long with a handle of 12 ½ inches. This instrument was thus a solid metal instrument close to two feet with 9 inches long sharp blade. The nature of the weapon and the fact that the blows were given on the head behind the ear around the neck would show that he intended to cause death. 18. In the result, criminal appeal is dismissed. R & P to be transmitted to the trial court forthwith. Appeal Dismissed