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2018 DIGILAW 655 (GUJ)

Mukeshbhai Savjibhai Vaghela v. State of Gujarat

2018-04-28

BELA M.TRIVEDI, SONIA GOKANI

body2018
JUDGMENT : BELA M. TRIVEDI, J. 1. The appellants – accused have1 filed the present appeal under Section 374 of the Code of Criminal Procedure, 1973 challenging the judgment and order dated 18.10.2013 passed by the Sessions Judge, Amreli (hereinafter referred to as 'the Sessions Court') in Sessions Case No. 50 of 2013, whereby the Sessions Court has convicted the appellants for the offence punishable under Sections 302 read with 114 of the Indian Penal Code, and sentenced them to undergo life imprisonment and directed them to pay fine of Rs. 5,000/- each, in default thereof to undergo simple imprisonment for the period of six months. 2. The case of the prosecution as unfolded before the Sessions Court was that the complainant Samjuben wife of Baghabhai Vaghela along with her husband Baghabhai, her son Rameshbhai and her daughter-in-law Shantaben were staying at Village Tori, Tehsil Vadia, District Amreli. On 01.02.2013 at about 1:30 p.m., the deceased Rameshbhai, his wife Shantaben, his mother Samjuben and his father Baghabhai were having their lunch at their home. At that time Savjibhai Ramjibhai who happened to be the younger brother of Baghabhai, came to their residence with wooden stick in hand and started abusing Rameshbhai as to why did he inform police for seizure of his tempo carrying bullocks. At that time Mukeshbhai son of Savjibhai also came with an axe in his hand and he also started abusing and quarreling with Remeshbhai. In the meantime, Jamnaben and Dingu Vikram, daughter-in-law of Savjibhai had also arrived there, and started abusing Rameshbhai by saying that Rameshbhai should be killed today. When the complainant Samjuben and her family members asked them not to abuse Rameshbhai, Mukeshbhai got infuriated and gave a blow with axe on the head of Rameshbhai. Since Rameshbhai was profusely bleeding, the people who gathered there, called emergency van 108, and took Rameshbhai to Kukavav Government Hospital at Amreli. The Doctor at the said hospital examined Rameshbhai and stitched the wounds on the head and referred the patient Rameshbhai to Rajkot. The said Rameshbhai was unconscious at that time and was treated by the Doctor at Rajkot, however, thereafter he succumbed to the injuries on 03.02.2013. The complainant Samjuben, mother of deceased Rameshbhai in the meantime had lodged the complaint at Vadia Police Station Camp at Civil Hospital Rajkot. The said Rameshbhai was unconscious at that time and was treated by the Doctor at Rajkot, however, thereafter he succumbed to the injuries on 03.02.2013. The complainant Samjuben, mother of deceased Rameshbhai in the meantime had lodged the complaint at Vadia Police Station Camp at Civil Hospital Rajkot. The said complaint was registered as I-C.R. No. 06 of 2013 before the Vadia Police Station for the offence under Section 302 and 114 of IPC. 3. The Investigating Officer after carrying out the investigation, submitted the charge-sheet against the four accused persons i.e. Mukeshbhai, Savjibhai, Jamnaben and Dinguben in the Court of Principal Civil Judge and J.M.F.C., Vadia, who committed the case to the Sessions Court for trial. The case was registered as Sessions Case No. 50 of 2013. The Sessions Court framed the charge against the four accused at Exh. 5, whereby all the four accused were charged for the offences under Section 504 read with 114, 506(2) read with 114, and the accused No. 1 and 2 i.e. Mukeshbhai and Savjibhai were charged for the offences under Sections 302 read with 114 of IPC and Section 135 of the Gujarat Police Act. All the four accused denied the charges levelled against them and claimed to be tried. 4. The prosecution in order to prove the charges levelled against the accused had examined as many as 22 witnesses and produced number of documentary evidence. After the completion of evidence of the prosecution, further statements of accused were recorded, whereby they denied the allegations levelled against them. The accused Mukeshbhai had further stated that on 31.01.2013, he along with his parents had gone to village Chamardi to sell their cow to one Patel, and while returning from there, they had stayed overnight at village Gama pipaliya. Next day morning at about 9:00 a.m., they had started from that village and had reached village Tori at about 01:00 p.m. He further stated that when they were passing by the way near the house of the complainant, the complainant, Baghabhai, Rameshbhai and Shantaben etc. attacked them with stick and pipe, and in the fight, his mother Jamnaben received injuries and was taken to the Hospital. Thereafter, the complainant had lodged false complaint against them. attacked them with stick and pipe, and in the fight, his mother Jamnaben received injuries and was taken to the Hospital. Thereafter, the complainant had lodged false complaint against them. The accused Savjibhai and Jamnaben also stated similar things under Section 313 of Cr.P.C. The accused also examined two witnesses DW-1 - Shamjibhai Bhanabhai Sadmiya and DW-2-Yogendrabhai Nathabhai Solanki in support of their defence. The accused also produced the charge-sheet and the FIR being I-C.R. No. 8 of 2013 registered at Vadia Police Station at Exh. 69 and 70 respectively. The Sessions Court after appreciating the evidence on record and considering the submissions of the learned advocates for the parties, acquitted the accused Jamnaben and Dinguben, and convicted the appellants – accused Mukeshbhai and Savjibhai for the offence under Section 302 read with 114 of IPC and sentenced them as stated hereinabove. 5. The learned advocate Mr. Rajkumar Chaumal for the appellants vehemently submitted that the Sessions Court had ignored the evidence adduced by the accused and mis-appreciated the evidence led by the prosecution in convicting the appellants – accused. According to him, most of the panch witnesses had turned hostile and not supported the case of prosecution. The panchnama with regard to discovery of muddamal axe allegedly used for the commission of offence, and the panchnama with regard to collection of blood of the deceased and the collection of earth control, were not duly proved, and therefore, the reports of FSL also could not be relied upon by the prosecution. PW-7 Dr. Bhimjibhai had given treatment to deceased Rameshbhai at Amreli Hospital, and PW-11 Dr. Kavitaben Kotak who had treated the deceased at Rajkot Hospital, had not clearly stated as to by which weapon, the injuries found on the head of the deceased, were possible. He further submitted that the prosecution had not examined any independent witness, though as per the case of prosecution, many people had gathered there at the scene of offence. PW-3 Samjuben, PW-4 Bakulbhai, PW-5 Baghabhai, PW-6 Shantaben examined by the prosecution were the close relatives of the deceased and therefore interested witnesses. Mr. Chaumal also submitted that the accused Jamnaben had also received injuries as per the injury certificate produced at Exh. 68, as the fight had taken place at the spur of moment. PW-3 Samjuben, PW-4 Bakulbhai, PW-5 Baghabhai, PW-6 Shantaben examined by the prosecution were the close relatives of the deceased and therefore interested witnesses. Mr. Chaumal also submitted that the accused Jamnaben had also received injuries as per the injury certificate produced at Exh. 68, as the fight had taken place at the spur of moment. In the alternative, he submitted that there was no premeditative act on the part of the accused and the fight having taken place on the spur of moment, the case of the accused fell within the Exception 4 of Section 300. 6. However, the learned AGP Mr. Rutvij Oza for the State submitted that merely because the panch witnesses had turned hostile, the case of prosecution does not get vitiated, more particularly, when the prosecution had proved the guilt of the accused by leading cogent oral evidence as well as documentary evidence. According to him, PW-3, PW-4, PW-5, and PW-6 were the eye witnesses to the whole incident and merely because they happened to be the relatives of the deceased, their testimonies could not be discarded. He drew the attention of the Court to the further statements of the appellants recorded before the Sessions Court to submit that the appellants had admitted their presence at the scene of offence, and therefore, it could not be said that they were falsely implicated in the alleged incident. Not only that the medical evidence supported the case of prosecution that the injuries found on the head of deceased were possible with the weapon like muddamal axe. Even the Doctors who had initially treated the deceased, had recorded the history in the case papers at Exh. 34 and 36 that the deceased was assaulted and injured with axe by the accused. He further submitted that the evidence adduced by the defence was more helpful to the prosecution than to the appellants. The Sessions Court having rightly appreciated the evidence led by both the parties, this Court should not interfere with the said judgment. 7. In the instant case, there is hardly any dispute that the death of the deceased Rameshbhai was homicidal. As transpiring from the evidence of PW-7 Dr. Bhimjibhai Laljibhai Dabhi, he had examined and treated Rameshbhai Baghabhai who was unconscious when he was brought at the Civil Hospital, Amreli by his mother Samjuben at about 4:00 p.m. on 01.02.2013. 7. In the instant case, there is hardly any dispute that the death of the deceased Rameshbhai was homicidal. As transpiring from the evidence of PW-7 Dr. Bhimjibhai Laljibhai Dabhi, he had examined and treated Rameshbhai Baghabhai who was unconscious when he was brought at the Civil Hospital, Amreli by his mother Samjuben at about 4:00 p.m. on 01.02.2013. According to him, as per the history stated in the case papers at Exh. 25, Rameshbhai was assaulted with axe on 01.02.2013 at 2:00 p.m. at village Tori by Mukesh Savjibhai, Savjibhai Ramjibhai, Vikram Savjibhai and Jamnaben Savjibhai as told by his mother Samjuben. As per the medical injury certificate, he had CLW of size 3” x ½” bone deep over vertex on the head and was bleeding, he was unconscious and his condition being serious, he was sent to the Civil Hospital, Rajkot. According to him, such injury was possible with hard and blunt substance like the handle of muddamal article axe shown to him in the Court. In the cross-examination, he had admitted that Rameshbhai had only one injury on the head and such injury was possible with blunt substance. He had denied that such injury was not serious injury and was possible by fall on the sharp edged stone. 8. The prosecution had also examined PW-11 Dr. Kavitaben Rameshchandra Kotak, who had examined deceased Rameshbhai when she was on duty as Medical Officer at Government Hospital, Rajkot on 01.02.2013. She had stated that as per the history given by the relatives, the patient had received injury as a result of assault with axe at about 1:30 p.m., at village Tori. She has further stated that the patient had stitched wound of the size 5 cm on the temporal parital region on the head and he had one abrasion of 1 x 1 cm on the left toe. She had further stated that the injury being of serious nature, he was sent to the Department of Neurosurgeon for opinion. She could not say as to by which weapon, such injury was possible as the wound was stitched. 9. Dr. Mustaq Ahmed Gulamrasul Shaikh who had carried out the postmortem on 03.02.2013 was examined as PW-12. He had stated that cause of death was shock and hemorrhage due to head injury as mentioned in the postmortem report Exh. 38. She could not say as to by which weapon, such injury was possible as the wound was stitched. 9. Dr. Mustaq Ahmed Gulamrasul Shaikh who had carried out the postmortem on 03.02.2013 was examined as PW-12. He had stated that cause of death was shock and hemorrhage due to head injury as mentioned in the postmortem report Exh. 38. He had also stated that said injury found on the head was sufficient to cause death in ordinary course of nature, and that such injury was possible by hard and blunt substance and also with the sharp edged weapon like muddamal axe shown to him. In the cross-examination, he denied that such injury was possible by a fall on the rough floor. 10. Having regard to the afore stated medical evidence, it was sufficiently proved by the prosecution that the deceased Rameshbhai had received head injury on 01.02.2013 on the temporal parital region of head, and that such injury was possible with the weapon like muddamal axe, and that the said injury mentioned in the case papers and the postmortem report, was sufficient to cause death of a person in ordinary course of nature. The moot question that arises however is, whether the prosecution had proved the charges levelled against the appellants – accused under Section 302 read with Section 114 of IPC beyond reasonable doubt. 11. As stated earlier, the prosecution had examined as many as 22 witnesses to prove the charges levelled against the accused. However, the panch witnesses of the panchnama pertaining to the scene of offence, of the panchnama with regard to collection of control sample earth from the scene of offence, of the panchnama pertaining to discovery of muddamal article axe, and of the panchnama pertaining to collection of blood sample of the deceased, had turned hostile and not supported the case of prosecution except admitting their respective signatures on the said panchnamas. The entire case of the prosecution hinges on the evidence of PW-3 the complainant Samjuben, who was the mother of the deceased, PW-4 Bakulbhai Baghabhai Vaghela, brother of the deceased, PW-6 Shantaben Rameshbhai Vaghela, wife of the deceased, as also the Investigating Officer PW-21 Vishalbhai Vashrambhai Vagadiya. The learned advocate Mr. The entire case of the prosecution hinges on the evidence of PW-3 the complainant Samjuben, who was the mother of the deceased, PW-4 Bakulbhai Baghabhai Vaghela, brother of the deceased, PW-6 Shantaben Rameshbhai Vaghela, wife of the deceased, as also the Investigating Officer PW-21 Vishalbhai Vashrambhai Vagadiya. The learned advocate Mr. Rajkumar Chaumal for the appellants – accused had vehemently submitted that the panch witnesses having turned hostile and the prosecution having failed to examine any independent witnesses, the Sessions Court had committed serious error in convicting the appellants – accused solely on the basis of evidence of relatives of the deceased who were the interested witnesses. 12. In view of the said submission, before dealing with the respective evidence of the said witnesses, it would be relevant to reproduce the legal position settled by the Supreme Court with regard to the appreciation of evidence of the hostile witnesses and the interested witnesses. In the case of Koli Lakhmanbhai Chanabhai versus State of Gujarat reported in AIR 2000 SC 210 , it has been held inter alia that the evidence of hostile witnesses can be relied upon to the extent to which it supports the prosecution version. The evidence of such witnesses cannot be washed off the record. It remains admissible in trial and there is no legal bar to base the conviction upon the testimony of the such witnesses, if corroborated by other reliable evidence. Similar view has been taken by the Supreme Court in the case of Bhajju @ Karan Singh versus State of M.P. reported in 2012 (4) SCC 327 , and also the case of Sidhartha Vashisht alias Manu Sharma versus State (NCT of Delhi) reported in (2010) 6 SCC 1 . It is also held in the case of Lahu Kamlakar Patil and another versus State of Maharashtra reported in (2013) 6 SCC 417 , relying upon the earlier decisions in the case of Rameshbhai Mohanbhai Koli versus State of Gujarat reported in (2011) 11 SCC 111 , to the effect that the evidence of hostile witnesses cannot be rejected in toto merely because the prosecution has chosen to treat them as hostile. Their evidence can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof. Their evidence can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof. In the instant case, the panch witnesses to the panchnamas drawn by the Investigating Officer during the course of the investigation have turned hostile, and not the witnesses to the alleged incident. The panchnamas are even otherwise duly proved by the Investigating Officer in his evidence before the Court. 13. So far as the legal position with regard to appreciation of evidence of the close relatives of the deceased is concerned, it also well settled that a close relative of the deceased does not per se, become an interested witness. As held by the Supreme Court in the case of Dharnidhar versus State of Uttar Pradesh and Others reported in (2010) 7 SCC 759 , the evidence of family members cannot be ignored or thrown out solely because they are close relatives of the deceased. The relevant observations made by the Supreme Court in this regard may be reproduced as under : “12. There is no hard-and-fast rule that family members can never be true witnesses to the occurrence and that they will always depose falsely before the Court. It will always depend upon the facts and circumstances of a given case. In the case of Jayabalan v. U.T. of Pondicherry [ (2010)1 SCC 199 ], this Court had occasion to consider whether the evidence of interested witnesses can be relied upon. The Court took the view that a pedantic approach cannot be applied while dealing with the evidence of an interested witness. Such evidence cannot be ignored or thrown out solely because it comes from a person closely related to the victim. The Court held as under: "23. We are of the considered view that in cases where the court is called upon to deal with the evidence of the interested witnesses, the approach of the court, while appreciating the evidence of such witnesses must not be pedantic. The court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the court must not be suspicious of such evidence. The primary endeavour of the court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim. 24. The primary endeavour of the court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim. 24. From a perusal of the record, we find that the evidence of PWs 1 to 4 is clear and categorical in reference to the frequent quarrels between the deceased and the appellant. They have clearly and consistently supported the prosecution version with regard to the beating and the ill-treatment meted out to the deceased by the appellant on several occasions which compelled the deceased to leave the appellant's house and take shelter in her parental house with an intention to live there permanently. PWs 1 to 4 have unequivocally stated that the deceased feared threat to her life from the appellant. The aforesaid version narrated by the prosecution witnesses, viz. PWs 1 to 4 also finds corroboration from the facts stated in the complaint." 13. Similar view was taken by this Court in Ram Bharosey v. State of U.P. [ AIR 2010 SC 917 ], where the Court stated the dictum of law that a close relative of the deceased does not, per se, become an interested witness. An interested witness is one who is interested in securing the conviction of a person out of vengeance or enmity or due to disputes and deposes before the Court only with that intention and not to further the cause of justice. The law relating to appreciation of evidence of an interested witness is well settled, according to which, the version of an interested witness cannot be thrown over- board, but has to be examined carefully before accepting the same.” 14. The crux of the afore stated legal position is that a close relative per se does not become interested witness. The evidence of a witness can not be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim. The only thing is that such evidence has to be examined carefully before accepting the same. Hence, let us examine the evidence of the witnesses examined by the prosecution. 15. The complainant Samjuben Baghabhai Vaghela who happened to be the mother of deceased Rameshbhai, was examined at Exh. 17. The only thing is that such evidence has to be examined carefully before accepting the same. Hence, let us examine the evidence of the witnesses examined by the prosecution. 15. The complainant Samjuben Baghabhai Vaghela who happened to be the mother of deceased Rameshbhai, was examined at Exh. 17. She had stated inter alia that on the date of incident at about 1:30 p.m., she along with her husband, her son Rameshbhai and his wife Shantaben were having their lunch at their home, and at that time, her brother-in-law Savjibhai Ramjibhai had come there with stick in his hand and asked Rameshbai as to why he had informed the police for the seizure of his vehicle carrying his cattle. Thereafter, he started abusing Rameshbhai and in the meantime, his son Mukeshbhai Savjibhai came there with axe in his hand. The said Mukeshbhai thereafter gave a blow on the head of Rameshbhai with the said axe. As a result thereof, her son Ramesh fell down on the ground and was bleeding. In the meantime, Jamnaben and daughter in-law of Savjibhai had also arrived there and they also started saying that let Ramesh be killed today. The said Samjuben had further stated that thereafter the other persons having gathered there, 108 van was called and Ramesh was taken to the hospital at Amreli and then hospital at Rajkot, where he had expired. She had admitted the contents of the complaint Exh. 18 and had also identified the accused sitting in the Court and also the muddamal article axe shown to her in the Court. In the cross-examination, she had admitted that at the time of incident, her son Rameshbhai and his wife were staying separate and the house of Rameshbhai was adjacent to the house of Savjibhai. She had clarified that Ramesh was staying adjacent to her house. She had also admitted that her son-in-law was caught by the police with the tempo carrying cattle, however, thereafter she had clarified that it was the tempo of the accused which was caught and not of her son-in-law. She had clarified that Ramesh was staying adjacent to her house. She had also admitted that her son-in-law was caught by the police with the tempo carrying cattle, however, thereafter she had clarified that it was the tempo of the accused which was caught and not of her son-in-law. She had denied that on the previous day, Savjibhai, Mukeshbhai, and Jamnaben had gone to village Chamardi to sell their cow, and that while coming back from the village Gama Pipaliya, when they were passing by the way near her house, her husband Baghabhai, Rameshbhai and his wife Shantaben had attacked Mukesh, Jamnaben and Savjibhai with pipe. 16. PW – 5 Baghabhai Ramjibhai Vaghela, who happened to be the father of deceased Rameshbhai, and PW-6 Shantaben who happened to be the wife of deceased, had also reiterated the entire incident corroborating the version of the complainant Samjuben. Both of them were cross examined, however, no significant evidence adverse to the case of prosecution was brought out by the defence. The prosecution had also examined PW-4 Bakulbhai Baghabhai Vaghela, who happened to be the brother of deceased, however, he was not present at the time of alleged incident and according to him, he was told about the incident by the witness Shantaben wife of deceased Rameshbhai. PW-15 Head Constable Kantibhai Nathabhai Ravrani, who had registered the complaint of the complainant Samjuben on 01.02.2013, was examined at Exh. 42. The Investigating Officer Vishalbhai Vashrambhai had stated about the investigation carried out by him. PW-16 PSI Rambhai Bhikhabhai Gojiya examined at Exh. 44 had laid the charge-sheet against the accused in the Court on 07.04.2013. 17. The appellants – accused had examined D.W.-1 Shamjibhai Ghanabhai at Exh. 74, who had stated that on 31.01.2013, the accused No. 1 Mukeshbhai who happened to be his son-in-law, along with Savjibhai and Samjuben had come to his village Gama Pipalia and had stayed overnight at his home, and that they had left next day morning at about 12 O' clock. The D.W.-2 Yogendrabhai Solanki, who was serving as unarmed Head Constable at Vadia Police station, was examined at Exh. 75. He had stated that on 01.02.2013, Jamnaben had given one N.C. complaint for the offence under Sections 323, 504 and 114 of IPC. In the cross-examination, he had admitted that he did not know whether it was registered or not. 18. 75. He had stated that on 01.02.2013, Jamnaben had given one N.C. complaint for the offence under Sections 323, 504 and 114 of IPC. In the cross-examination, he had admitted that he did not know whether it was registered or not. 18. Now, from the afore stated evidence of PW-3 Samjuben, PW-5 Baghabhai and PW-6 Shantaben, it clearly transpires that they were present at the scene of offence and had witnessed the alleged incident. Pertinently, it was not the case of the appellants – accused that they were not present when the alleged incident took place. On the contrary, as per the defence put forth by them in the cross-examination, and further statements of the accused recorded under Section 313 of Cr.P.C., their presence has been admitted by the appellants. Of course, according to them, the complainant Samjuben, her husband Baghabhai and the deceased Rameshbhai had attacked them with the pipe. In any case, it was duly established that the alleged incident had taken place near the house of complainant and that the complainant Samjuben, her husband Baghabhai, Rameshbhai and Shantaben were present and had witnessed the alleged incident. 19. It is axiomatic that the statement of the accused can be used to test the veracity of the exculpatory nature of the admission, if any, made by the accused. In this regard, it would be relevant to regurgitate the legal position with regard to the use of further statement of the accused recorded under Section 313 of Cr.P.C. The Supreme Court in the case of Manu Sao versus State of Bihar reported in (2010) 12 SCC 310 , has examined the vital features of Section 313 of Cr.P.C., and observed as under:- “14. The statement of the accused can be used to test the veracity of the exculpatory nature of the admission, if any, made by the accused. It can be taken into consideration in any enquiry or trial but still it is not strictly evidence in the case. The provision of Section 313(4) explicitly provides that the answers given by the accused may be taken into consideration in such enquiry or trial and put in evidence against the accused in any other enquiry or trial for any other offence for which such answers may tend to show he has committed. In other words, the use is permissible as per the provisions of the Code but has its own limitations. In other words, the use is permissible as per the provisions of the Code but has its own limitations. The courts may rely on a portion of the statement of the accused and find him guilty in consideration of the other evidence against him led by the prosecution, however, such statements made under this section should not be considered in isolation but in conjunction with evidence adduced by the prosecution.” 20. At this juncture, it would be also relevant to mention that as per the evidence of Dr. Bhimjibhai Laljibhai dabhi and Dr. Kavitaben Rameshchandra Kotak, the history of the incident was recorded in the case papers at Exh. 24 and medical certificates at Exh. 25 and 34, according to which, the deceased Rameshbhai had received injuries due to the assault made with axe by the accused Savjibhai and Mukeshbhai. The said history in the case papers and medical certificate was recorded at the earliest point of time immediately after the incident in question, when the deceased Rameshbhai was taken to the hospital at Amreli, and thereafter at Rajkot. There is no cross-examination made by the defence on this evidence to impeach the credibility of the evidence of these Doctors. The Court therefore has no reason to disbelieve their testimony, and the history recorded in their case papers, which fully support the version of the eye witnesses examined by the prosecution. Hence, merely because the said eye witnesses happened to be the close relatives of the deceased Rameshbhai, their evidence could not be discarded, when the same has been found to be trustworthy, reliable and finds corroboration from the other cogent evidence. 21. Thus, having regard to the totality of circumstances and the evidence on record, the Court has no hesitation in holding that the prosecution had proved beyond reasonable doubt that the appellants – accused had abused and quarelled with Rameshbhai, and thereafter the accused Mukeshbhai had given a blow with axe on the head of Rameshbhai, and that the said Rameshbhai died because of shock and hemorrhage, as a result of the said injury, which was sufficient to cause his death in ordinary course of nature. 22. 22. This takes the Court to deal with the alternative submission made by learned Advocate Mr.Chaumal for the appellants – accused that the alleged incident had taken place in the heat of passion and in a sudden fight, and that there being single blow given without any premeditative act, the appellants – accused should be given benefit of Exception 4 to Section 300 and punish them under Section 304 Part II of IPC. Mr. Chaumal had relied upon the decision of Supreme Court in the case of Gurmukh Singh versus State of Haryana reported in 2009 AIR SCW 6710, and in the case of Balu Onkar Pund and Others versus State of Maharashtra reported in AIR 2015 SC 949 to buttress his submission. 23. With regard to the afore stated submission made by the learned advocate Mr. Chaumal for the appellants, it may be noted that there is no rule of universal application that in every case of single blow or injury, the accused cannot be convicted under Section 302 of IPC. It would always depend upon the facts and circumstances of each case, which would have to be taken into consideration before arriving at the conclusion whether the accused should be appropriately convicted under Section 302 or 304 of IPC. It is true that in the decisions relied upon by Mr. Chaumal and in many other decisions like in the case of Jagrup Singh versus State of Haryana reported in (1981) 3 SCC 616 , in the case of Gurmail Singh and Others versus State of Punjab reported in (1982) 3 SCC 185 , and in the case of Abani K. Debnath and Another versus State of Tripura reported in (2005) 13 SCC 422 , the Supreme Court considering various factors including single blow or injury, had sentenced the accused for the offence under Section 304 Part II and not 302 of IPC. Hence, let us consider whether the case of the appellants falls under Section 304 Part II of IPC as sought to be submitted by Mr. Chaumal. 24. It is significant to note that as stated by the appellants in their respective further statements, the incident had taken place when they were passing by the road near the house of the complainant. Chaumal. 24. It is significant to note that as stated by the appellants in their respective further statements, the incident had taken place when they were passing by the road near the house of the complainant. As per their defence put forth during the cross-examination of the prosecution witnesses, the complainant and her family members had attacked them first because of some dispute with regard to the seizure of the tempo carrying their cattle, whereas according to the complainant Samjuben and the other witnesses, the accused along with Jamnaben and Dinguben had come to their house and started quarreling with them and then the accused Mukesh gave a blow with axe on the head of Rameshbhai. As discussed above, the appellants – accused in support of their defence, had examined two witnesses and also produced the injury certificate of Jamnaben to show that on the previous day, they had gone to village Chamardi to sell their cow and had stayed overnight at the village Gama Pipaliya and while returning from there, when they were passing nearby the house of the complainant, the said fight had taken place, in which Jamnaben had received injuries. The injury certificate of Jamnaben is produced at Exh. 68, in which it has been stated that she was treated at about 3:25 p.m. on 01.02.2013 at the Community Health Centre, Vadia. In the history, it has been stated that she was assaulted with pipe and she had CLW on the left side scalp and abrasion over right side upper lip. Be it noted that the said injuries of Jamnaben, who was also one of the accused before the trial Court, have remained to be explained by the prosecution. In any case, from the said evidence, it clearly transpires that some fight had taken place between the appellants and their family members and the complainant and her family members, in which the appellant Mukeshbhai had given one blow with axe on the head of Rameshbhai, which caused his death, and the said Jamnaben also received some injuries. Hence, the entire incident appears to have taken place in a sudden fight, in the heat of passion and on the spur of moment, the appellant Mukesh had given a blow with axe on the head of Rameshbhai. Hence, the entire incident appears to have taken place in a sudden fight, in the heat of passion and on the spur of moment, the appellant Mukesh had given a blow with axe on the head of Rameshbhai. From the nature of injury also, it appears that the appellants – accused had not taken any undue advantage or had not acted in cruel or unusual manner. The said Rameshbhai though unconscious, also survived for two days after the alleged incident. Further, the appellants and the deceased belong to the same family, as the appellant Savjibhai is the brother-in-law of the complainant Samjuben. Hence, considering the overall facts and circumstances, the Court is inclined to hold that the case of the appellants would fall under the Exception 4 to Section 300 i.e. culpable homicide not amounting to murder, and the appellants should be punished for the offence under Section 304 Part II read with Section 114 and not for Section 302 read with Section 114 of IPC. 25. In that view of the matter, it is held that the appellants have committed culpable homicide not amounting to murder as per Exception 4 to Section 300, and are liable to be punished for the offence under Section 304 Part II read with Section 114 of IPC. Hence, the appellants are directed to undergo rigorous imprisonment for a period of ten years and each of them is directed to pay fine of Rs. 50,000/-, in default thereof to undergo further imprisonment of six months. The amount of fine that may be deposited by the appellants in the trial Court, shall be paid to the family members of the deceased Rameshbhai towards the compensation under Section 357 of Cr.P.C. The judgment and order of conviction and sentence passed by the Sessions Court stands modified accordingly. The appeal stands partly allowed. 26. Record and proceedings be sent back to the court concerned forthwith.