JUDGMENT : Biren Vaishnav, J. 1. The appellant accused has filed the present appeal being aggrieved by the judgment and order dated 30.12.2012 passed by the learned Additional Sessions Judge, Valsad, in Sessions Case No. 20 of 2012. By the aforesaid judgment, the learned Sessions Judge has convicted and sentenced the appellant for life imprisonment for offence under section 302 of IPC. The prosecution case is primarily based on the first informant's version who was the eyewitness to the incident. 2. Aakashram Kiritsinh filed the FIR on 12.06.2011. According to this first informant, while he was on his way from his shop to his home to attend nature's call, at about 3:30 in the afternoon, he found one Chhaganbhai Bhagwanbhai and Mangubhai Bhailalbhai standing on the road abutting to the railway line. He saw two people approaching them in that direction. One was holding a knife. Both of them were arguing with each other. The two persons whom this informant had seen, then went at an isolated spot on the road abutting the railway line. The first informant saw them arguing with each other. He further witnessed one of them picking up a stone and hitting the other on the head. Having seen this incident, the first informant immediately ran towards the attacker. The accused who was the attacker, was then handed over to the police. When questioned, the accused informed the first informant that since he was in relationship with his wife and since the husband was an obstacle in nurturing this relationship, he attacked the deceased with an intention to kill him. The first information report further narrated that the accused had taken the deceased into confidence, led him to an isolated spot, smashed his head with a stone, returned shortly to confirm that deceased had died. Based on this FIR, the learned Sessions Judge framed a charge at Exh. 5. Both the accused No. 1-present appellant and the wife of the deceased were shown as co-accused and the charge was framed for offences under sections 302, read with section 120B/section 34 of the Indian Penal Code. Wife of the deceased Lilaben however was acquitted of the charges and it was the appellant-accused who was convicted and sentenced for offence under section 302. 3. The first informant Aakash was examined as PW-8 at Exh. 24. Wife of the deceased Lilaben however was acquitted of the charges and it was the appellant-accused who was convicted and sentenced for offence under section 302. 3. The first informant Aakash was examined as PW-8 at Exh. 24. In his testimony he stated that he was at his shop from 8 in the morning till about 10 a.m. He then left for his house. After lunch, when he was out at around 3 in the afternoon to attend the nature's call across the road, he came across two persons approaching him. The two had brief argument. One of them thereafter picked up a stone lying by and hit the other on head. The stone approximately was weighing 14 to 15 kgs. When the incident happened, one Mangubhai and Chhaganbhai were together present at the scene of offence. When shown the article 14 stone, this witness identified the stone that was used. This witness was cross-examined. The defense tried to suggest in the cross-examination that the first information report that was lodged at the hands of the complainant was not explained as it was in Gujarati language whereas the applicant was not in position to read or right Gujarati. The defense tried to bring out contradictions through this witness from the police statement that he had given. What was also tried to be suggested was that looking to the proximity of the police station, the first informant could not be lodged the FIR. 4. As is evident from the narrative of the FIR and the testimony of the first informant, two other individuals viz. Mangubhai and Chhaganbhai had witnessed the incident. Mangubhai was examined as PW-10 at Exh. 31. Chhaganbhai, PW-11, was examined at Exh. 32. Both these witnesses however turned hostile. They denied that in the police statement they had stated being seen the accused hitting the deceased with a stone. 5. Dr. Nayan Kishorkumar Bharucha, PW-7, at Exh. 20, was the doctor who carried the postmortem. According to the doctor, all the injuries that the deceased sustained were antemortem. He found that the head on the left had been smashed and the facial bones had also sustained fractures. 5. Dr. Nayan Kishorkumar Bharucha, PW-7, at Exh. 20, was the doctor who carried the postmortem. According to the doctor, all the injuries that the deceased sustained were antemortem. He found that the head on the left had been smashed and the facial bones had also sustained fractures. The nature of external injuries that the deceased sustained were mentioned in column No. 17, which are as under: "Crush injury of left side of head with compressed fracture of facial bones & frontal parietal temporal & occipital bone of (LT) side of skull" Internal injuries corresponding to external injuries were also mentioned. "Cush injury of (Lt) sided frontal parietal temporal & occipital & facial bone Crushed brain matter pale in colour" 6. What is evident from the examination of the doctor is that the gravity of the injury was so serious that he could see the skull ruptured. He confirmed to have performed postmortem and produced the report at Exh. 21. In the opinion of the doctor, the injuries were caused as a result of the head being smashed with a stone, and was sufficient to cause death. Such injuries, in the opinion of the doctor, could have been caused as a result of use of the stone that was shown to him. The defense tried to suggest that the deceased could have sustained injuries as a result of fall and having come in contact with a vehicle with force. Such a suggestion was being emphatically denied by the doctor. In the cross-examination, it was stated that such injuries could not have been caused as a result of a fall. 7. The Investigating Officer was examined as PW-17, at Exh. 43. The Investigating Officer through his testimony and in the examination-in-chief, narrated the entire investigating process that was carried out. The Investigating Officer was cross-examined. Nothing substantial turns out from the investigation. 8. From the scene of offence Panchnama at Exh. 27, which have been produced through PW-9, what would be evident is that there were blood marks in the area of about 3 feet. That the stone that was recovered from the scene of offence was a heavy stone, which according to the prosecution, could be weighing about 10 to 12 kgs. 9. At Exh. 42 is the serological report from the stone found at the scene of the offence. That the stone that was recovered from the scene of offence was a heavy stone, which according to the prosecution, could be weighing about 10 to 12 kgs. 9. At Exh. 42 is the serological report from the stone found at the scene of the offence. Blood of group-B, which was of the deceased, was found on such stone. 10. It is based on this evidence that the learned Sessions Judge convicted the accused for offences under section 302 of the Indian Penal Code. Assessment of evidence at our hands brings forth the following factors: A. The prosecution case essentially is based on the testimony of an eyewitness who was the first informant. Through his testimony at Exh. 24 what is evident is that he was sitting in the vicinity of the area where the accused led the deceased on to the railway tracks abutting the road. What is indicative from the testimony of the first informant is that while he was on his way to attend nature's call in the afternoon, he found the accused in the company of the deceased. He saw the two of them going towards an isolated spot on the railway track. At that point, he witnessed the accused after a brief argument, picked up a stone and smashed the head of the deceased. According to this witness, the stone weighed around 10 to 12 kgs. The contents of the FIR lodged which is at Exh. 25, stand confirmed through the testimony of this witness. The defense has not seriously questioned his presence at the scene of offence. But the defense through the cross-examination has only sought to show is the handicap of the first informant's language that the FIR was lodged at the hands of this witness and that his presence was seriously doubted, has never been questioned. B. Through the testimony of Dr. Nayan Kishorkumar Bharucha, PW-7, and through the postmortem report at Exh. 21, it is established that the injuries that the deceased had sustained were grievous in nature. They were serious injuries. The skull has been smashed. What is further evident from the postmortem report that the deceased had sustained compressed fracture on the front parietal temporal region. The cause of death was as a result of serious death injuries as is recorded in the FIR. 11. They were serious injuries. The skull has been smashed. What is further evident from the postmortem report that the deceased had sustained compressed fracture on the front parietal temporal region. The cause of death was as a result of serious death injuries as is recorded in the FIR. 11. Learned advocate for the appellant has relied on a judgment rendered in Criminal Appeal No. 1918 of 2012 dated 10.04.2017. The learned counsel would argue that based on this judgment, when the fight has occurred in a heat of passion resulting in a sudden quarrel, the conviction and sentence awarded by the learned Sessions Judge be altered to one under section 304 (Part-I) of the Indian Penal Code. 12. What is evident from the nature of evidence on record is that the accused led the deceased to an isolated spot, picked up a heavy stone and hit the deceased on the head causing serious injuries which resulted in the death of the victim. 13. What further emerges from the contents of the FIR and formed part to the testimony of PW-8 that after having hit the deceased with the stone, he returned to confirm that the deceased had met an unfortunate death. Evidently, therefore the intention and the knowledge that such injuries will cause death was apparent. It was not a case of a sudden fight and heat of passion so as to warrant invocation of sections 4 to 8 of the Indian Penal Code. Therefore, the learned advocate's contention that the conviction and sentence be altered to that of section 304 (part I) deserves to be rejected. 14. In the result, Criminal Appeal is dismissed. R & P to be transmitted back to the concerned Trial Court. Appeal Dismissed