JUDGMENT : Z.K. Saiyed, J. 1. The present conviction Appeal has been filed by the appellant-original accused, under Section 374(2) of the Cr. P.C., against the Judgment and order dated 14.10.2010 rendered in Sessions Case No. 74 of 2007 by the learned 2nd Additional Sessions Judge, Bharuch whereby the appellant-accused was convicted for the offence punishable under Section 304 Part-II of the Indian Penal Code and sentenced to undergo five years rigorous imprisonment with fine of Rs. 1000/-, in default of payment of fine, further rigorous imprisonment of two months. 2. It is the case of the prosecution that the appellant is the cousin of the deceased Shankar alias Ganpat Khushalbhai Machhi Patel and they are residing in a small village of Bharuch District named Shuklatirth. The appellant is a young person of 30 years. According to the case of the prosecution, on 10.04.2007, when the deceased Shankar asked for dinner to his mother Maniben, she asked him to wait for sometime, so the deceased got angry and started quarreling with her. They both came out of their house fighting and hurling abuses. At that time, the accused Rajesh Chhaganbhai Machhi Patel was standing in his Varandah. He asked the deceased that why he is hurling abuses. The deceased replied that he is abusing in his own home, why other should bother. Hearing this, the accused Rajesh got excited, he went inside home, got a spade and hit it with its backside on the head of the deceased. Bleeding was started due to the said injury and he fell down. The accused, then, went inside his home. The mother of the deceased took him to the Shuklatirth outpost, but returned as the policeman was not present. On the next day, the deceased was given first aid treatment. On 12.04.2007, the brother in law of the deceased and the father of the accused and their relatives arrived at a written compromise to the effect that they will not file the complaint and the accused will bear the expenses of the treatment of the deceased. On 13.04.2007, the deceased was admitted to a private hospital named Veer Surgical Hospital of Dr. Dilip Patel. On 16.04.2007, the deceased was discharged from the hospital. Although, his condition deteriorated and he was then, admitted to the Civil Hospital, Bharuch on 21.04.2007. On 13.04.2007, the deceased was admitted to a private hospital named Veer Surgical Hospital of Dr. Dilip Patel. On 16.04.2007, the deceased was discharged from the hospital. Although, his condition deteriorated and he was then, admitted to the Civil Hospital, Bharuch on 21.04.2007. On the same day, the complaint was registered at Nabipur Police Station by the father of the deceased. On 21.04.2007, at 11:15 p.m., when the deceased was admitted in the Civil Hospital, Bharuch, he was examined by Dr. A.D. Chauhan. He had opined that the deceased had titans and therefore, he needed acute treatment. He, then, was referred to the SSG Hospital, Vadodara for further treatment, as there was no separate ward for such treatment. The deceased, then, died there on 27.04.2007. 3. Thereafter, the investigation was carried out and statement of the witnesses were recorded. Place of the panchnama and inquest panchnama were drawn. Dead body of the deceased was sent to the hospital and postmortem of the deceased was carried out. Panchanam of physical condition was drawn. Medical papers were also tagged with the investigation paper. Muddamal was also recovered under Section 27 and then, the said muddamal was sent to the FSL and FSL report was also obtained. Thereafter, appellant-accused was arrested. 4. After collecting the evidence by the Investigating Agency, charge-sheet was filed before the learned Chief Judicial Magistrate, Bharuch. As the said case was exclusively triable by the Court of Sessions, learned Chief Judicial Magistrate, Bharuch committed the case to learned Additional Sessions Judge, Bharuch under Section 209 of the Criminal Procedure Code, which was numbered as Sessions Case No. 74 of 2007. 5. On the basis of above allegations, charge was framed vide Exh. 5 against the appellant-accused and read-over and explained to the appellant-accused for the alleged offences and plea was recorded wherein, appellant-accused pleaded not guilty to the charge and claimed to be tried. 6. In order to bring home the charges against the accused person, prosecution has examined twelve witnesses and also produced documentary evidences. 7. Thereafter, after filing closing pursis by the prosecution, further statement of the appellant-accused under Section 313 of the Code of Criminal Procedure, 1973 was recorded, wherein the appellant has denied the case of the prosecution and has pleaded his innocence. The appellant has submitted that a false case is filed against him. 8. 7. Thereafter, after filing closing pursis by the prosecution, further statement of the appellant-accused under Section 313 of the Code of Criminal Procedure, 1973 was recorded, wherein the appellant has denied the case of the prosecution and has pleaded his innocence. The appellant has submitted that a false case is filed against him. 8. Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence passed by the learned 2nd Additional Sessions Judge, Bharuch, the present appellant-original accused referred this appeal. 9. Heard Mr. Kashyap R. Joshi, learned advocate for the appellant-accused and Mr. N.J. Shah, learned Additional Public Prosecutor for the respondent-State. 10. Mr. Kashyap R. Joshi, learned advocate for the appellant-accused contended that the judgment and order passed by the learned Sessions Judge is illegal, invalid and improper. He also contended that the learned Sessions Judge has not considered the case of the defence and material evidence produced on record and has passed absolutely wrong order. He has contended that the prosecution has miserably failed to prove its case beyond reasonable doubt, yet the learned Sessions Judge has not considered the probable defence of the appellant and has wrongly convicted the appellant. He contended that in the instant case, initially charge under Section 302 of the IPC was framed against the appellant-accused. However, later on after recording the evidence of the witnesses, the learned trial Judge has altered the charge from Section 302 to Section 304 Part-II of the IPC and the appellant-accused was convicted for the offence punishable under Section 304 Part-II of the IPC. He read the provisions of Section 300 of the IPC i.e. if the act by which the death is caused is done with the intention of causing death, and argued that in present case, as per the so-called story of the prosecution, only single blow was given by spade on the head of the deceased by the appellant-accused and hence, prima-facie, it appears that there was no intention of the appellant-accused to kill the deceased. He then contended that in present case, both the panchas subsequently declared hostile. He read Section 27 of the Evidence Act and contended that the fact of recovery at the instance of an accused has to be proved beyond reasonable doubt like any other fact by reliable witnesses. He then contended that in present case, both the panchas subsequently declared hostile. He read Section 27 of the Evidence Act and contended that the fact of recovery at the instance of an accused has to be proved beyond reasonable doubt like any other fact by reliable witnesses. In present case, the Investigating Officer did not disclose that when the appellant-accused appeared before him and whether he is ready to produce the muddamal which was used by him at the time of offence. Therefore, as per the provisions of Section 27 of the Evidence Act, contents of the panchnama creates shadow of doubt and as a result of which, the discovery panchnama has no value in the eyes of law. He then contended that as per the version of father of the deceased, so-called quarrel took place between the mother and the deceased with respect to dinner. When deceased was abusing his mother, the appellant-accused simply asked him not to hurl abuses. The deceased replied that he was abusing his mother and others should not bother. Therefore, the appellant-accused got excited and brought spade from his house and gave one blow on the head of the deceased. Mr. Joshi contended that it is well settled that simply because only interested and family members have been examined as witnesses, prosecution case could not be believed and therefore, it was essential to examine independent witnesses to prove the prosecution story and non-examination of independent witnesses also raises doubt against the genuineness of the prosecution. He then contended that because of hot altercation between the deceased and the accused, the accused had inflicted a single blow in the heat of moment in a sudden fight on the head of the deceased causing his death and when deceased tried to run away, he fallen down and thereby he sustained fatal injuries. Further, probable defence was made by the appellant-accused that the deceased was drunker and at the time of incident, he was inebriated. He then contended that the mother and father agreed upon one fact that there was a compromise and the accused had to take financial burden of the treatment and therefore, no complaint has been filed till 11 days. He contended that there is absolutely no legal evidence to connect the appellant. He then contended that the mother and father agreed upon one fact that there was a compromise and the accused had to take financial burden of the treatment and therefore, no complaint has been filed till 11 days. He contended that there is absolutely no legal evidence to connect the appellant. In fact, complainant's version regarding injury caused to the deceased is totally different from the version of the doctor i.e. medical witness. The complainant had no knowledge about the so-called injury, which was simple in nature and the doctor, who examined the deceased, did not find any grievous injury, however, due to lack of proper care either on the part of the doctor or on the part of his family members, his condition became serious subsequently. He further contended that in the postmortem note, cause of the death is not properly disclosed. It is required to be noted that present appellant and deceased are cousin living in same vicinity and both are neighbour. He urged that present appellant is a poor person and sentenced awarded by the learned trial Court is very harsh. He therefore, prayed either to acquit the appellant-accused or to reduce to sentence. Therefore, considering the above aspects, the learned trial Judge committed grave error by convicting the appellant-accused for the alleged offence and therefore, she prayed to allow this appeal by quashing and setting the judgment and order of the learned trial Court. 11. As against this, Mr. N.J. Shah, learned Additional Public Prosecutor, has contended that the judgment and order passed by the learned Sessions Judge is absolutely just and proper. He has contended that the prosecution has proved its case beyond reasonable doubt. He read the oral evidence of Khushalbhai Dahyabhai-complainant, Maniben w/o Khushalbhai and Kanubhai Sukhabhai-son in law of the complainant and argued that all the witnesses have disclosed the incident in question before the learned trial Court. Presence of the appellant-accused at the scene of offence is proved and muddamal article is also identified. The cause of the deceased was due to blow of spade was given by the appellant-accused on the vital part of the body and not by falling down. Further, the deceased has given the statement before the witness Kanubhai Sukhabhai and therefore, as per Section 32 of the Evidence Act, the said statement can be considered as dying declaration. The cause of the deceased was due to blow of spade was given by the appellant-accused on the vital part of the body and not by falling down. Further, the deceased has given the statement before the witness Kanubhai Sukhabhai and therefore, as per Section 32 of the Evidence Act, the said statement can be considered as dying declaration. As per the oral version of doctor Indiraben, the injury of the deceased was serious in nature. She further stated that initially case history was given by relatives of the deceased on the basis of compromise arrived at between the parties and not by the deceased-himself and therefore, the fact that injury caused due to fallen down become accessory. Mr. Shah further stated that in column No. 17 of the postmortem note, the doctor opined that fracture on the skull was found because of the blow given by the appellant-accused with hard and blunt object i.e. spade. Vehemently opposing the application, Mr. N.J. Shah, learned Additional Public Prosecutor submitted that there is ample evidence against the appellant in the nature of discovery panchnama under Section-27 of the Evidence Act, whereby the weapon used for the commission of the offence has been discovered at the instance of the appellant-accused. It was submitted that through the testimonies of the related witnesses, the motive of the commission of the crime have duly been established and hence, the appellant-accused has rightly been convicted for the offence in question. He contended that looking to the overall facts and circumstances of the case, and evidence produced on record, the order passed by the learned Sessions Judge is absolutely just and legal and is not required to be interfered with and therefore, he prayed to dismiss the present appeal. 12. I have gone through the impugned judgment and order passed by the learned Sessions Judge and oral as well as documentary evidence produced on record of the case. I have read the oral evidence of prosecution witness and also perused the charge framed against the appellant. 13. It is true that earlier charge under Section 302 of the IPC was framed against the appellant-accused. I have read the oral evidence of prosecution witness and also perused the charge framed against the appellant. 13. It is true that earlier charge under Section 302 of the IPC was framed against the appellant-accused. After the matter was committed to the Court of Session, the trial court came to the conclusion that there was no evidence or material on record to justify framing of a charge under Section 302 IPC, as a result of which charge was altered and framed under Section 304-(2) of the IPC. PW-3 Khushablbhai Dahyabhai and PW-4 Maniben were eye witnesses. I have minutely perused the cross-examination of these witnesses, however, defence could not make any strong probable defence to come out from the conviction and simply there was a defence that at the relevant time, the deceased was inebriated and and when he tried to run away, he fell down and received fatal injuries. It is further admitted by the defence that when the deceased was abusing, other persons were also present, however, none of them were examined by the prosecution as defence witnesses. I find no strength in the submission of the counsel for the appellant that independent witnesses who were present at the time of incident were not examined because non examination of available independent witnesses by the prosecution, does not affect the genuineness of the prosecution case and does not fatal to the prosecution case. I have read oral version of all the three doctors. It is established that firstly the treatment was given to the deceased before the first doctor, thereafter, he was shifted to Civil Hospital, Bharuch and then SSG. Hospital, Vadodara, where he died. In column No. 17 of the postmortem, the doctor has opined as under:- "(1) Three black coloured abrasion present on middle part of chest region. All are irregular size of them various from 2.5 * 1 cm. (2) One healted liner obliqueity placed split lacerated wound present on forehead region extends on to the frontal region of head. Length of this would is 6.5 cm. On opening scalp healded area with slight contusion is found beneath injury." It was further stated in the postmortem that the injuries received by the deceased could be possible due to hard and blunt object. Length of this would is 6.5 cm. On opening scalp healded area with slight contusion is found beneath injury." It was further stated in the postmortem that the injuries received by the deceased could be possible due to hard and blunt object. Further, in the case history given by the deceased before the doctor Indiraben, name of the present appellant-accused was mentioned coupled with the fact that one blow was given by the appellant-accused to the deceased. In the instant case, muddamal spade was recovered in presence of panchas, however, both the panchas did not support the case of the prosecution and subsequently declared hostile. One of the contentions of Mr. Joshi, learned advocate that discovery panchnama is not proved satisfactorily and legally and, therefore, it cannot be read as substantive piece of evidence. So far as the discovery of the weapon is concerned, the discovery is amply proved through the evidence of Investigating Officer. Though the panchas to the discovery panchas have been declared hostile, the prosecution has duly proved the panchnama through the testimony of the Investigating Officer. This Court as well Apex Court have held in plethora of decisions held that when the panch of the discovery panchnama declared hostile, the discovery panchama can be proved through oral version of the Investigating Officer. The date of the incident was 10.04.2007 and the deceased was shifted to hospital on 13.04.2007 and he was discharged from the hospital on 16.04.2007. However, again he was admitted in Civil Hospital, Bharuch on 21.04.2007 as his condition was deteriorating, which shows that there was no intention of the appellant-accused to kill the deceased. Therefore, the learned trial Judge has rightly altered charge to under Section 304 Part-II of the IPC to under Section 302 of the IPC. Actually, at the time of incident, when deceased was abusing, the appellant-accused simple asked not to abuse and in result of that, he got excited and gave single blow of the spade on the head of the deceased. Therefore, the conviction of the appellant under Section 302 of the I.P.C. cannot be sustained. In my considered view, the accused-appellant has rightly been convicted under Section 304 Part II of the I.P.C. instead of under Section 302 of the IPC. 14. I am, therefore of the opinion that the learned trial Judge has not committed any error in convicting the appellant-accused. Therefore, no interference is required. In my considered view, the accused-appellant has rightly been convicted under Section 304 Part II of the I.P.C. instead of under Section 302 of the IPC. 14. I am, therefore of the opinion that the learned trial Judge has not committed any error in convicting the appellant-accused. Therefore, no interference is required. The judgment and order of conviction dated 14.10.2010 rendered in Sessions Case No. 74 of 2007 by the learned 2nd Additional Sessions Judge, Bharuch is hereby confirmed. The present Appeal deserves to be dismissed and is hereby dismissed. Record and Proceedings, if any, be sent back to the trial Court concerned, forthwith. The bail bond of the appellant-accused shall stand cancelled and he is directed to surrender before the jail authority within a period of four weeks from today. Appeal Dismissed.