JUDGMENT : Biren Vaishnav, J. 1. The accused Gopalbhai Dahyabhai Solanki, who was sentenced to undergo life imprisonment for offence under Sections 302 and 504 of the Indian Penal Code, has filed the present appeal, challenging the judgment and order dated 04.10.2012 passed by the learned Sessions Judge, Surendranagar, in Sessions Case No. 46 of 2012. 2. Vasantbhai Dalpatbhai Rathod, upset by the convict that the accused was using foul language while sitting outside his house, came out and tried to admonish the accused. The accused in a fit of rage, with a sword in his hands, inflicted injuries on the abdomen of Vasantbhai Rathod. The incident occurred on 09.03.2012. Vasantbhai, while in a hospital at Surendranagar, lodged a First Information Report. After having been shifted to the Civil Hospital at Ahmedabad, he succumbed to injuries on 12.03.2012, three days after the incident. The accused-appellant, therefore, was charged for offences under Sections 302, 324, 323 and 504 of the Indian Penal Code. 3. The First Information Report lodged by the deceased-Vasant at hospital is at Exh. 51. Prosecution examined several witnesses, including three doctors. 4. The prosecution case essentially hinges on the testimony of the deceased wife's Jayaben, who was examined as prosecution witness No. 14 at Exh. 39. According to the testimony of this witness, the incident occurred on 09.03.2012 in the evening at 07:30 outside their house. She was inside with her children, while her husband Vasant, who followed the avocation of painting was sitting in his cabin. On hearing commotion outside, she ran out of the house. Her Sister-in-law Ramuben and her father-in-law soon followed her. She saw the accused Gopal abusing her husband. Vasantbhai was trying to admonish the accused, as he was sitting outside the house and using foul language. The accused-Gopal, in a fit of rage, with a sword in his hands, inflicted blows on Vasant in the abdomen. The accused Gopal then left the scene. According to this witness, when Gopal was attacking Vasant, her father-in-law and her sister-in-law were present. Her father-in-law and one Suresh Bhanjibhai carried Vasant to the C.J Hospital. At the C.J Hospital, the wounds were sutured. Next day in the morning at 10, the doctor has advised them to shift Vasant to Ahmedabad. He was, therefore, shifted to the Ahmedabad Civil Hospital. On 12.3.2012, Vasant succumbed to the injuries at the Civil Hospital. Her father-in-law and one Suresh Bhanjibhai carried Vasant to the C.J Hospital. At the C.J Hospital, the wounds were sutured. Next day in the morning at 10, the doctor has advised them to shift Vasant to Ahmedabad. He was, therefore, shifted to the Ahmedabad Civil Hospital. On 12.3.2012, Vasant succumbed to the injuries at the Civil Hospital. According to this witness, when her husband was at C.J. Hospital, he was completely conscious and has given his version to the Surendranagar Police Officials in the form of the First Information Report. Jayaben was cross-examined. The defence tried to suggest that the incident has occurred on the public road, and therefore, there could have been another independent witnesses who had witnessed the incident. She agreed to the suggestion that Gopal was a resident next door. Suggestion put by the defence that both the families i.e. the family of Vasant and Gopal had good relations was also denied. In the cross-examination, this witness stated that, when she heard shouts outside, she went out and called her father-in-law. Shopkeepers of the adjacent shops too arrived and that she had witnessed the incident. She denied a suggestion that she arrived on the scene of the offence after Gopal had completed the offending act. 5. Dalpatbhai Rathod-father of the deceased, was examined as prosecution witness No. 15 at Exh. 40. He, however, has turned hostile. In his examination-in-chief, this witness has stated that in the evening of 09.03.2012, while he was at home, which is a road opposite to Vasant's house, he saw Vasant lying injured on the ground. He had gone to the scene on hearing shouts outside his house. His police statement was recorded on the next day i.e. on 10.03.2012. This witness further stated that, he had gone out as he heard her daughter-in-law shouting. At that point of time, he saw the accused Gopal shouting at Vasant. Gopal was holding a sword in his left hand. Gopal injured Vasant in the lower part of the stomach with a sword, which he was holding. He admitted that, in the police statement he had not so stated. Ramuben prosecution witness No. 16 at Exh. 41 is Jayaben's sister-in-law. According to her version, when she was returning in the evening after purchase of vegetables, she saw Vasant arguing with the accused Gopal outside the cabin. He admitted that, in the police statement he had not so stated. Ramuben prosecution witness No. 16 at Exh. 41 is Jayaben's sister-in-law. According to her version, when she was returning in the evening after purchase of vegetables, she saw Vasant arguing with the accused Gopal outside the cabin. After a brief exchange Gopal was holding a sword in his hand, injured Vasant and thereafter immediately left the scene. She also testifies that, she had seen Jayaben, who was trying to intervene in the scuffle. She identified the muddamal article, a sword. Ramuben was cross-examined. In her cross-examination, she agreed that her father-in-law was not present when the incident occurred. He came a few minutes later. He carried Vasant to the Hospital in an auto-rickshaw with one Suresh Bhanji. She agreed when a suggestion was put to her that, she was on her way back after purchase of vegetable. She agreed that she had given such a statement before the police. 6. Deceased Vasant's elder brother Vikram was examined as prosecution witness No. 17 at Exh. 42. He, however, was not an eyewitness to the incident. What emerges on reading his testimony is that he was informed of the incident by his wife Ramuben. Sureshbhai Bhanjibhai-prosecution witness No. 13 was examined at Exh. 38. He also was not an eyewitness to the incident. According to this witness, while he was on the road to Mandavraiji Petrol Pump, he saw few people gathered outside Vasant's cabin. Noticing the crowd, he went towards Vasant's cabin. He found Vasant lying on the ground. Vasant has sustained injuries in his abdomen. When he questioned Vasantbhai, according to this witness, Vasantbhai informed him that he had sustained injuries as a result of being hit by iron rod. This witness stated that, he was not specifically told by Vasant that he had sustained injuries on being attacked by a sword. Nothing substantial turns in the cross-examination of this witness, particularly, when even in the examination-in-chief, what comes out that he was not an eyewitness to the incident. 7. The prosecution has examined three doctors. One, who initially treated Vasantbhai at the C.J Hospital, the other at the Civil Hospital and the third who carried out the Post-Mortem. 8. Doctor Rudrasinh Zala, prosecution witness-1 at Exh. 7. The prosecution has examined three doctors. One, who initially treated Vasantbhai at the C.J Hospital, the other at the Civil Hospital and the third who carried out the Post-Mortem. 8. Doctor Rudrasinh Zala, prosecution witness-1 at Exh. 9, who was working as a Medical Officer at the C.J. Hospital, Surendranagar, deposes that Vasant Rathod was brought to the hospital at 7:35 in the evening of 9.3.2012. According to the doctor, Vasant was fully conscious. The patient had given history of having sustained injuries as a result of being hit by an iron rod at the cabin. This doctor recorded one injury on the left side on the lower part of the stomach. It was a cut wound. This doctor sutured the wound and gave him primary treatment. In the opinion of this doctor, on examination of the nature of the injury, such an injury was possible by a sharp instrument. Doctor Rudrasinh Zala was cross-examined. In the cross-examination, he admitted that he only sutured the wound, but did not give any further treatment and that there was no such injuries that Vasant had sustained except the sole injury on the stomach. 9. Doctor Sanjay Solanki was the Medical Officer at the Civil Hospital, Ahmedabad and examined as Prosecution witness No. 2 at Exh. 11. Vasantbhai was, according to this witness, referred to the Civil Hospital on the 10.3.2012 on a referred note from the Surendranagar hospital. This witness further stated that, after being admitted at the hospital on 10.03.2012, during the course of treatment on 12.03.2012, Vasant succumbed to injuries. According to the doctor, when Vasant was brought to the hospital, he was accompanied by his father. His father gave the history stating that, Vasant had sustained injuries on being attacked with a sword by the accused Gopal. The doctor recorded five injuries, which were primarily on the lower part in the abdominal area and one of the injury was recorded at the elbow. Injury No. 1 was a sutured wound. Injury No. 2 according to this doctor was a contusion on the lower part of the stomach. On 10.03.2012, a surgery was performed. In the opinion of this doctor, it is not clear as to which weapon could have been used for causing such injuries. He issued a Medical Certificate at Exh. 15. Injury No. 1 was a sutured wound. Injury No. 2 according to this doctor was a contusion on the lower part of the stomach. On 10.03.2012, a surgery was performed. In the opinion of this doctor, it is not clear as to which weapon could have been used for causing such injuries. He issued a Medical Certificate at Exh. 15. In the cross-examination, he stated that, he had not opened the sutured wound and examined the gravity of injury. In the history recorded which is at Exh. 13, the Certificate shows that the father had given specific history that Vasant had sustained injuries as a result of the sword inflicted upon the deceased-Vasant by the accused Gopal. 10. Doctor Jayant Solanki, prosecution witness-3 at Exh. 17, was working as a Medical Officer at the Civil Hospital, who carried out the Post Mortem. He has already stated earlier that, Vasant succumbed to his injuries on 12.03.2012. This doctor recorded eleven injuries on the body. The injuries recorded by the doctor, as is evident from column No. 17 of the Post-Mortem at Exh. 20 are as under: "External Injuries (1) 23 cm vertical surgical stapled pin sutured wound on mid abdomen out of which 15cm about ambitious & 8cm below umbilicus. (2) 7.5cm ob downwards medially stapled pin sutured wound on lt lower abdomen where upper end is 11 cm left to umbilicus (3) 1cm round surgical wound on Lt. Lateral abdomen 14 cms super-lateral to umbilicus. (4) 1.5cm round surgical wound with thread sutured on Rt. Lateral abdomen 13cm Rt to umbilicus. (5) 0.5 x 0.5 cm area of brown scabs on Lt. (6) 0.5 x 0.5 cm brown scab on Lt, side 5 cm super -lateral to umbilicus. (7) Diffuse 8 x 6 cm contusion bluish with subcutaneous haematoma on Lt. lower lateral arm. (8) Diffuse contusion 12 x 10 cm bluish with subcutaneous haematoma on lateral and posterolateral aspects of left lung chest & upper abdomen (9) 0.5 x 0.5 cm brown scals below sternal match on chest. (10) Pin point Reddish brown abrasions on Rt. Lateral part of infraclavicular region. (11) Diffuse contusion 8 x 4 cm transvase, bluish on anterilated aspect of Rt, mid thigh." In the opinion of the doctor, all the injuries were ante mortem. In the opinion of the doctor, the cause of death was a result of excessive bleeding and subsequent complications. (10) Pin point Reddish brown abrasions on Rt. Lateral part of infraclavicular region. (11) Diffuse contusion 8 x 4 cm transvase, bluish on anterilated aspect of Rt, mid thigh." In the opinion of the doctor, all the injuries were ante mortem. In the opinion of the doctor, the cause of death was a result of excessive bleeding and subsequent complications. Even the Post-Mortem Report at Exh. 20 records that the cause of death was cardio respiratory arrest due to abdominal injury and its complications. Doctor Jayant Solanki was cross-examined. Nothing emerges from the cross-examination of the doctor. The weapon, sword was discovered at the instance of the accused. The discovery panchnama is at Exh. 34. Prosecution witness No. 10 Shailendrasinh Sursinh and prosecution witness No. 11 Kanjibhai Kalabhai, through whom the panchnama was presented have turned hostile. They, however, admitted their signatures to such panchnama. Through the testimony of the Investigating Officer Shambhu Vashrambhai, PW-23 at Exh. 53, the execution of such panchnama has been proved. Reading of the panchnama indicates that the accused Gopal led the police party to his house. He then took the police party to the bath room of his house and from a tin roof of such bathroom from a crevice he took out the sword. The length of the sword, according to the panchnama was about 28 inches. At his insistence, the clothes that the accused had worn at the commission of the offence were also recovered from a cupboard. 11. The Serological Report has been exhibited at Exh. 58. The Serological Report shows that the blood group of the deceased was group 'B' the blood on the sword was found but the group cannot be identified. 12. Prosecution witness 21 Jitendradan Ratansinh Gadhvi was the Head Constable of the City Police Station, who recorded the First Information Report on the 09.03.2012 at the C.J. Hospital. Jitendradan Gadhvi, in his examination-in-chief states that the first informant-deceased Vasant had upon brought to the C.J. Hospital and on receiving telephonic information from the doctor, he proceeded to the hospital to record the complaint. Vasant in his statement had informed the police that he had sustained injuries on being hit by an iron rod at the hands of the accused Gopal Dahyabhai Solanki. The Investigating Officer Shri Shambhu Vashrambhai Ranjoliya has also been examined as prosecution witness 23 at Exh. 53. Vasant in his statement had informed the police that he had sustained injuries on being hit by an iron rod at the hands of the accused Gopal Dahyabhai Solanki. The Investigating Officer Shri Shambhu Vashrambhai Ranjoliya has also been examined as prosecution witness 23 at Exh. 53. He deposes of the steps that he took to carry out the investigation. From the cross-examination of the Investigating Officer what is revealed is that, the incident occurred on the evening of 09.03.2012 at 7:30. 13. This, therefore, based on this evidence on record the accused had been convicted of the offences under Sections 302 and 504 of the Indian Penal Code. The assessment of evidence at our hands ..... thus- 14. Vasantbhai's wife prosecution witness 14 was an eyewitness to the incident. What emerges on reading her testimony is that while she was at home in the evening of 09.03.2012, she heard shouts outside her house. She ran out in the company of her sister-in-law Ramuben. When she came out of the house, she saw the accused Gopal abusing her husband Vasant. Gopal at that point had a sword in his hand and with a sword he hit a blow on the abdomen of Vasant. Gopal immediately fled from the scene of the offence. Suresh Bhanji along with her father-in-law carried Vasant to the C.J. Hospital. As the doctor informed that his condition was serious, Gopal was shifted to the Ahmedabad Civil Hospital on the next day i.e. on 10.03.2012. This witness further records that when her husband was at the C.J. Hospital under treatment, the police had come over to the hospital and recorded his complaint. Jayaben was, therefore, an eyewitness to the incident and it is evident on reading her testimony that she had witnessed the entire episode right from the time when the accused Gopal was admonished by the deceased from using foul language while standing outside the house. On hearing the commotion outside, she went out and exactly witnessed the incident as is unfolded. 15. She also in her testimony indicates that when she came out Ramuben also was present at the scene of the incident. 16. Ramuben is her sister-in-law, therefore, her testimony at Exh. 41 indicates her presence at the scene of the offence on the evening of 09.03.2012. She was returning home after purchasing vegetables. She witnessed the incident from distance. 15. She also in her testimony indicates that when she came out Ramuben also was present at the scene of the incident. 16. Ramuben is her sister-in-law, therefore, her testimony at Exh. 41 indicates her presence at the scene of the offence on the evening of 09.03.2012. She was returning home after purchasing vegetables. She witnessed the incident from distance. She saw Gopal holding a sword and attacking Vasant. She corroborate with version of her sister-in-law Jayaben. She identified the weapon sword when it was shown to her. 17. Dalpatbhai Rathod, Vasant's father though has turned hostile, what emerges from the earlier part of his testimony is that though, he may not have been an eyewitness to the incident, his testimony is read in conjunction with that of Ramuben and Jayaben. Looking to the fact that he was staying road opposite Vasant's house that he came over immediately is not in doubt. He carried Vasant to the hospital in the company of Suresh Bhanji. 18. Suresh Bhanji, was examined as prosecution witness 13 at Exh. 38. The reading of his testimony reveals that, though, he was at a distance at the Mandavraiji Petrol Pump, when he saw people gathered outside Vasant's house, he went there immediately. When he asked Vasant who was lying injured on the ground as to what happened, Suresh testifies that it was Vasant who informed him that he had been injured as a result of being hit by a rod. He, though, however did not specifically named anybody. When the evidence of this witness is seen in light of the testimony of Jayaben and Ramuben, it is evident that Suresh also arrived soon thereafter and carried Vasant to the hospital. 19. Testimony of doctor Sanjay Solanki, prosecution witness 2, which at Exh. 11 when seen, what emerges therefrom is that in the history recorded by this doctor at Exh. 13, it is clearly stated that Vasant sustained injuries on being attacked with a sword at the hands of the accused Gopal. 20. The defence would contend that when the entry at Exh. 63 are recorded, the first history is seen together with the testimony of PW-13 and that of the doctor who treated Vasant at first point of time i.e. doctor Rudrasinh Zala, what was recorded in the history was that Vasant had sustained injuries as a result of being hit with an iron rod. 63 are recorded, the first history is seen together with the testimony of PW-13 and that of the doctor who treated Vasant at first point of time i.e. doctor Rudrasinh Zala, what was recorded in the history was that Vasant had sustained injuries as a result of being hit with an iron rod. The suggestion of the defence, therefore, was that the use of the weapon sword was seriously in doubt. In light of what doctor Rudrasinh Zala stated, when read in context with the first history recorded that the injuries that the deceased Vasant sustained as a use of the weapon sword was seriously in doubt. 21. What needs to be appreciated is that after having sustained injuries at the hands of the accused on the basis of the testimonies of the witnesses corroborated by the discovery of the weapon at the hands of the accused and that the injuries on the body of the deceased Vasant is not in doubt. The incident occurred at 07:30 in the evening. The police constable Jitendradan Gadhvi has in his testimony stated that he reached the hospital immediately and the First Information Report was recorded in the evening at around 7:35. The condition of an injured person and the history that is recorded at the instance of what he says needs to be appreciated in the context of his physical and mental state after having suffered an attack with the weapon. The victim may not be in a mental position to reveal the exact nature of the weapon used and merely because there is discrepancy of such a nature, the defence cannot secure advantage of such a discrepancy. 22. The Serological Report also indicates the use of the weapon Sword, though, the report was inconclusive to the nature of the blood group. 23. Evidently, therefore, that the accused did play a role and carried out the offending act of injuring the accused with a sword stands proved beyond doubt. 24. The offending act would require our attention to convict the offender of offences under Section 302. 25. It was on 09.03.2012 in the evening at 7:30 that the accused carried out the offending act. 26. Vasant-the deceased upset at Gopal's using a foul language and shouting outside house came out admonishing the accused. The accused then who was holding a sword stabbed Vasant once in the lower part of the abdomen. 25. It was on 09.03.2012 in the evening at 7:30 that the accused carried out the offending act. 26. Vasant-the deceased upset at Gopal's using a foul language and shouting outside house came out admonishing the accused. The accused then who was holding a sword stabbed Vasant once in the lower part of the abdomen. From the testimony of the doctors, who initially treated him and subsequently from the evidence of the doctor who carried out the Post-Mortem, it is apparent that the nature of injuries that Vasant sustained were not such injuries as would indicate that they were inflicted with an intention to cause death. 27. What further emerges from the testimony of doctor Jayant Solanki who carried out the Post-Mortem is that the death occurred three days after i.e. on 12.03.2012. The testimony of this witness, when read in context of the Post-Mortem further indicates that the cause of death was cardio respiratory failure due to abdominal injury and its complications. Therefore, it is indicative from the medical evidence also that from the nature of injury that the deceased sustained, it cannot be said that the weapon was used with an intention to cause death. 28. Having held thus, we are of the opinion that the conviction and sentence dated 04.10.2012, rendered by the learned Sessions Judge, Surendranagar, in Sessions Case No. 46 of 2012, is altered to that of conviction under Section 304-II of the IPC and the applicant is sentenced to undergo rigorous imprisonment for a period of seven years. The fine imposed by the learned Sessions Judge, Surendrangar is maintained. The appeal is allowed, accordingly. R & P be sent back to the trial court forthwith.