JUDGMENT : A.S. SUPEHIA, J. 1. By this appeal, under section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as the “Code”), the appellant – accused has challenged the judgment and order of conviction and sentence dated 06.06.2011 passed by the learned Sessions Judge, Navsari (hereinafter referred to as “the trial court”), in Sessions Case No.50 of 2010, whereby the appellant has been convicted for the offence punishable under section 302 of the Indian Penal Code, 1860 (hereinafter referred to as the “IPC”) and is sentenced to undergo imprisonment for life and a fine of Rs.5,000/and in default, two years simple imprisonment. 2. The case of the prosecution, briefly stated, is that the appellant – accused was doing the labour work who was married to deceased Gulabben. The complainant bother of the deceased is having two other sisters viz. elder sister Dahiben and second one is Gulabben. Gulabben was married to the appellant, and since last 20 years they were residing in their faliya, she was having four daughters and one son. Since one year the accused used to torture physically deceased Gulabben, when she used to refuse to give money for liquor. The complainant and their family members had tried to convince the appellant, but he never agreed. On 30.07.2010, at about 06.30 hours in the morning, when the complainant was at home at that time his father Kamabhai and Shyam reached there and said that the appellant had given the blow of wooden handle of some weapon in the back side of head of Gulabben, due to which, she died. Thereafter, the complainant had gone to appellant's house and saw his sister lying there with blood stains on the bed. He saw blood oozing from her ear and Shyam, son of deceased had shown the wooden handle to the complainant with which the blow was given. Thereafter, the complainant had inquired from the neighbours and at that time, he came to know from Sarpanch Kalaben that yesterday at about 08.00 at night the appellant and deceased were quarreling regarding money for liquor and at that time the appellant gave the wooden blows on the head and face to Gulabben, and therefore, she died. 3. Thereafter, the complainant had inquired from the neighbours and at that time, he came to know from Sarpanch Kalaben that yesterday at about 08.00 at night the appellant and deceased were quarreling regarding money for liquor and at that time the appellant gave the wooden blows on the head and face to Gulabben, and therefore, she died. 3. Upon registering the offences, the Investigating Officer has carried out the investigation and after following the due procedure of law, a charge-sheet came to be filed before the Judicial Magistrate First Class, Navsari. Since the case was exclusively trial by the court of Sessions, the same was committed to the Sessions Court under Section 209 of the Code of Criminal Procedure. A charge was framed against the accused-appellant and the plea of the accused-appellant was recorded. The accused– appellant pleaded not guilty to the charges and claimed to be tried. 4. At the time of trial, in order to bring home the charges levelled against the accused, the prosecution examined 7 witnesses as well as produced 16 documentary evidence. 5. At the end of the trial and after recording the statement of the accused under section 313 of the Cr.P.C. and hearing the arguments on behalf of the prosecution and the defence, the trial court convicted the accused of all the charges levelled against them and sentenced as aforesaid. Being aggrieved and dissatisfied with the aforesaid judgment and order passed by the trial court, the appellant accused has preferred the present Criminal Appeal. 6. Mr. M.M. Barot, learned advocate for the appellant submits that the trial court ought to have seen that there are material omissions and contradictions in the oral testimony of the prosecution witnesses. It is submitted that all these material omissions and contradictions in the version of the prosecution witnesses at different stage ought to have led the trial court to come to the conclusion that the prosecution has failed to prove its case beyond reasonable doubt. The trial court ought to have given benefit of reasonable doubt to the accused – appellant for the offences for which he is convicted. 7. Mr. The trial court ought to have given benefit of reasonable doubt to the accused – appellant for the offences for which he is convicted. 7. Mr. M.M. Barot, learned advocate for the appellant states that the trial court has erred in not appreciating that, all the circumstances relied on by the trial court which were against the accused person were not asked to him in his examination under section 313 of the Code of Criminal Procedure, 1973, resulting into material prejudice to him. 8. Mr. M.M. Barot, learned advocate for the appellant submits without prejudice that in any case the impugned sentence or punishment is unjustified, excessive, too harsh or severe on the facts and circumstances of the case. 9. In the alternative, learned advocate Mr. Barot has submitted that looking to the entire evidence, the appellant cannot be convicted under section 302 of the IPC but he has to be given benefit of section 304 Part-II of the IPC, more Particularly in view of the fact that he had only inflicted one blow on the deceased. He has submitted that there was no intention on the Part of the accused to commit murder as there was no prior enmity with the deceased, but the incident took place at the spur of the moment. Mr. M.M. Barot, learned advocate for the appellant has relied upon the judgment of the Apex Court in the case of Kusha Laxman Waghmare Vs. State of Maharasthra, (2015) 1 S.C.C. (Cri.) 100. In the said case, the Apex Court has held that the weapon used by the appellant is wooden stick and as per the prosecution case, the deceased was severely beaten by the said stick. As a result thereof, she died. There is no cogent evidence to show that the appellant had beaten the deceased with an intention to cause her death. Therefore, the Apex Court has altered the conviction of the appellant to section 304 Part-II of the IPC and awarded him a sentence of ten years of rigorous imprisonment. 10. In support of the judgment rendered by the trial court, learned Additional Public Prosecutor, Mr. L.B. Dabhi has contended that the findings of the trial court are well-founded as the trial court has carefully scrutinized the testimonies of the witnesses as well as the documentary evidence. 10. In support of the judgment rendered by the trial court, learned Additional Public Prosecutor, Mr. L.B. Dabhi has contended that the findings of the trial court are well-founded as the trial court has carefully scrutinized the testimonies of the witnesses as well as the documentary evidence. He has stated that the accused has murdered the deceased by inflicting the blow of wooden handle on the vital Part of the deceased i.e. back side of the head. He has submitted that the blow was inflicted with the intention and knowledge to cause death and hence, the trial court is justified in convicting the accused for the offence under section 302 of the IPC instead of section 304 Part-II of the IPC. 11. We have given our thoughtful consideration to the arguments of the learned advocates for the respective Parties. In order to appreciate the rival contentions, it will be necessary to closely scrutinize the testimonies of the witnesses. 12. In all, the prosecution has examined 7 witnesses. In the present case, the prosecution has primarily placed reliance on the testimonies of three witnesses, eyewitnesses PW5 (son of the deceased Gulabben and accused), PW1 (brother of the deceased Gulabben), and PW2 (neighbour) of the deceased. The case of the prosecution is that the accused has inflicted fatal blow of wooden lock on the side of the head of the deceased Gulabben. In the postmortem report (Exh.15), corresponding to the item no.17, which refers to the type of injury, it is mentioned that “(1) 5 x 4 cm bruise with little swelling reddish blue coloured over Lt. vertex, 4 cm right & upward to Lt. ear lobule. with # of underlying bone. (2) 2 x 1 cm abrasion reddish brown coloured with bruise & little swelling of surrounding 5 x 4 ½ clw area over Rt. cheek, just 2 cm below Rt. Eye clotted blood over wound. (3) 3 x 2 cm reddish brown abrasion over centre of Lt. elbow, post”. The Medical Officer, (PW6), Dr. Dhavalbhai Mehta, who is examined Exh.15, while referring to the injury marks, as mentioned by him in the postmortem report of the deceased, has deposed that cause of death is the injury no.1, which can be caused by striking a wooden log. elbow, post”. The Medical Officer, (PW6), Dr. Dhavalbhai Mehta, who is examined Exh.15, while referring to the injury marks, as mentioned by him in the postmortem report of the deceased, has deposed that cause of death is the injury no.1, which can be caused by striking a wooden log. Thus, from the deposition of the Medical Officer it can be safely concluded that the deceased had died due to blows inflicted on the vital Part of her head. 13. The complainant (PW1), brother of the deceased, has been examined at Exh.8. In his deposition, he has stated that he was residing at Sisodra at Aarak with his family. He has one brother and two sisters viz. Dahiben and second one is Gulabben. Prior to 20 years from the date of incident, his sister Gulabben was married to the present appellant Mukeshbhai. Mukesh and Gulabben quarreled very often, and therefore, their children were living separately. On 30th son of Gulabben, Shyam came to his home and informed him that his mother was beaten, hence he went to his home. Shyam showed him the wooden log and told him that his father had hit his mother with the same. He has deposed that he saw that there was a blow on the back side of head of Gulabben and there was injury on the right side of her mouth. She was lying on a plastic cot. Thereafter, Kalaben came there. When we reached there, his sister Gulabben was already dead. On asked by his father he called the police who lodged the complaint. The complainant in his evidence has clearly stated that Mukesh was a habitual drunkard. He has stated that Kalaben informed him that on 29th Mukesh and Gulabben were quarreling. The complainant has identified Mukesh before the Court. In the cross-examination, it is elicited that he went to the house of the deceased in the morning at that time the accused was not present, but when he went again, the accused was lying there in drunken position. He has also deposed that when the police arrived, the accused was still lying there. Upon showing muddamal article No.3, he identified the weapon – wooden log which Shyam had shown to him. From the testimony of the present witness, it emerges that he was not an eyewitness to the incident, and he had arrived in the morning. He has also deposed that when the police arrived, the accused was still lying there. Upon showing muddamal article No.3, he identified the weapon – wooden log which Shyam had shown to him. From the testimony of the present witness, it emerges that he was not an eyewitness to the incident, and he had arrived in the morning. There is a minor omission amounting to contradiction brought out in his testimony pertaining to the information given to him about the incident by his father Kamabhai and his nephew Shyam. However, it is established from his testimony that his nephew Shyam had informed about the incident to him in the morning. 14. The sarpanch of the village–independent witness (PW2) Kalaben Bharatbhai was examined at Exh.10, on behalf of the prosecution. In her evidence, she has stated that at the night of 29th, when she was returning after closing her lorry, at that time, Mukesh and his wife were arguing with each other. Thereafter, on 30th, at about 08.00 hours in the morning, when she opened the lorry, the son of the accused viz. Shyam had informed her that his father has murdered his mother, and thereafter, he went to his grandparents. She has submitted that thereafter, she went to the home of the accused and saw the deceased lying there with the blood oozing from her back side of head and left side of ear. In her cross-examination, she has stated that Gulabben was her maternal aunty. It is elicited from her cross-examination that when she was going after closing her lorry, she heard the altercation between the accused and the deceased. Thus, from the deposition of the present witness, it emerges that there was prior verbal altercations between the accused and the deceased before the fatal incident. 15. The PW5 – Shyam Mukeshbhai (child witness), who is the sole eyewitness is examined at Exh.14 on behalf of prosecution. He is the son of the deceased Gulabben and accused Mukeshbhai. On the day of his deposition, he was 8 years old and after he was made to understand the importance of the testimony, the trial court has recorded his testimony. In his evidence, he has stated that on the day of incident, there was fight between his mother and father for some money and on the said date, the incident had occurred at about 12.00 hours in the night. In his evidence, he has stated that on the day of incident, there was fight between his mother and father for some money and on the said date, the incident had occurred at about 12.00 hours in the night. In his evidence, he has submitted that his father had hit the wooden lock on the head of his mother. In his cross-examination, it is elicited that he was informed by his grandparents to depose that his father had murdered his mother and accordingly, he has made deposition. Thus, present child witness seems to be tutored by his grandparents. 16. The prosecution has mainly relied on the testimony of these three witnesses for bringing home the charge against the present appellant. The testimonies of PW1 and PW2, corroborate the fact that child witness, Shyam had informed both of them in the morning about the incident. PW2 has deposed that after informing her, Shyam went to the house of his grandparents. The testimonies of the afore noted witnesses and the deposition of Medical Officer suggest that the deceased had died because of one fatal blow inflicted by the accused on the vital Part of the head of the deceased. Though, the testimony of minor Shyam who is the son of both the deceased and the accused is flecked with tutoring, the vital fact of inflicting the blow by wooden log by the accused on the deceased stands corroborated by the testimony of other witnesses. The following factors emerge from the close scrutiny of evidence: (a) The accused has inflicted blows on the vital Part of the head of the deceased which resulted in her death on the spot; (b) The accused had an altercation with his deceased wife on the date of incident. There was dispute regarding money. The accused used to demand money from his wife–deceased Gulabben for liquor, and he was habitual in consuming liquor. 17. The evidence on record establishes the presence of accused at the scene of occurrence. The accused had inflicted blow on the head of deceased Gulabben in presence of their son Shyam. There was quarrel for money. Thus, the death can be said to be the outcome of quarrel between the accused and his deceased wife–Gulabben. 18. 17. The evidence on record establishes the presence of accused at the scene of occurrence. The accused had inflicted blow on the head of deceased Gulabben in presence of their son Shyam. There was quarrel for money. Thus, the death can be said to be the outcome of quarrel between the accused and his deceased wife–Gulabben. 18. The learned Advocate for the appellant has contended that the accused may be granted the benefit of section 304 Part-II of the IPC, since the injury no.1 which is the cause of death has been inflicted by a single blow. It is settled proposition of law, that it cannot be laid down as a rule of universal application that whenever single blow is inflicted, section 302 of the IPC is ruled out. It would depend upon the weapon used and the force with which the blow is inflicted and most importantly the Part of the body on which it is given. Undoubtedly, in the present case, as per the medical evidence, the accused had inflicted more than one blow on the of head of the deceased, though the cause of death as deposed by the Medical Officer, PW6 is the injury no.1. The same is inflicted with such intensity that the deceased died instantly on the spot. The weapon i.e. the wooden log used by the accused in inflicting the blow on the vital Part of the body i.e. left side of the head proved fatal to her and she died on the spot. However, the evidence also reveals that both the accused and his wife were married for 20 years. There were quarrels amongst them due to habitual consumption of liquor by the deceased and because of such circumstances as narrated above; on the fateful night due to quarrel between him and the deceased, he was provoked to hit her with the wooden log. 19. We have perused the judgment of the trial court threadbare. In our considered opinion, the trial court, after appreciating the evidence, has precisely established the presence of accused at the scene of offence and his involvement in the crime. However, the crucial issue is as to which was the appropriate provision to be applied looking to the overall evidence. In the present case, firstly, the injury is present. In our considered opinion, the trial court, after appreciating the evidence, has precisely established the presence of accused at the scene of offence and his involvement in the crime. However, the crucial issue is as to which was the appropriate provision to be applied looking to the overall evidence. In the present case, firstly, the injury is present. Secondly, the injury is inflicted by the wooden log on the vital Part of the body, which has resulted in the immediate death. Thirdly, the accused has inflicted the blows as a result of quarrel between him and his wife. Fourthly, the accused was in the habit of consuming liquor. Fifthly, the evidence reveals his presence at his home with his wife and his son Shyam. In the light of the circumstances and scenario presented before us, it is hard to accept that there was an intention of the accused of causing murder. However, we can certainly credit him with the knowledge that if a person is hit with a wooden log on the vital Part of the head, then the act is likely to cause death. Thus, it would be appropriate to hold the accused guilty of culpable homicide not amounting to murder which would bring the present case within the ambit of section 304 Part-II of the IPC. 20. The appeal, therefore, is Partly allowed. The judgment and order of conviction and sentence dated 06.06.2011 passed by learned Sessions Judge, Navsari, in Sessions Case No.50 of 2010 is set aside to the following extent. The conviction of the accused under section 302 of the IPC stands altered to conviction under section 304 Part-II of the IPC. He is sentenced to undergo rigorous imprisonment for a period 10 years. The fine and default sentence is maintained. Bail and bail bonds of the accused, if any, shall stand cancelled. Record and proceedings be returned forthwith.