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2021 DIGILAW 900 (GUJ)

OSMAN UMAR SAMA v. STATE OF GUJARAT

2021-10-05

A.J.DESAI, NIRZAR S.DESAI

body2021
JUDGMENT : NIRZAR S. DESAI, J. 1. By way of the present appeal under Section 374 of the Code of Criminal Procedure, 1973 (for short, `the Code, 1973’), the appellant - accused No.1 – Osman Umar Sama has challenged the judgment and order dated 01.07.2014 passed by the learned Additional Sessions Judge, Bhuj-Kachchh in Sessions Case No.52 of 2011 below Exh.122, whereby the learned Additional Sessions Judge convicted the present appellant for the offence punishable under Section 302 of the IPC and sentenced him to undergo life imprisonment and to pay a fine of Rs.2,000/-, and in default to further undergo 2 months simple imprisonment. 2. In Sessions Case No.52 of 2011, the learned Additional Sessions Judge tried, in all, five accused persons. The learned Additional sessions Judge at the end of the trial, convicted original accused Nos.2 and 3 for the offence punishable under Section 324 of IPC and imposed a fine of Rs.5,000/- and convicted accused Nos.4 and 5 for the offence punishable under Section 323 of the IPC and imposed a fine of Rs.1,000/-. The accused Nos.2 to 5 have paid the amount of fine imposed upon them and they did not challenge the order of their conviction under Sections 324 and 323 of the IPC respectively and the present appellant only has preferred the present appeal challenging his conviction under Section 302 of the IPC. 3. Brief facts leading to filing of the present appeal are stated as under: 3.1 There were cross complaints being CR No.I- 57 of 2011 and CR No.I-58 of 2011. The judgment under challenge in Sessions Case No.52 of 2011 arises out of complaint being CR No. I-57 of 2011 registered on 04.04.2011 at Bhuj City Police Station for the offences punishable under Sections 147, 148, 149, 323, 326, 307, 302 and 504 of the IPC and under Section 135 of the Bombay Police Act. The said complaint was filed by Noormamad Umar Sama wherein it was stated that on 04.04.2011 lunch was hosted on account of marriage of one Majid and while the complainant was going for lunch along with his sons Jabbar, Ishaq and Ismail and nephew Aziz Kasam Sama, on the way he found the present appellant standing with his old Maruti fronti car and was accompanied by Amin Latif Sama, Sattar Jiya Sama, Junas Musa Sama and one unidentified person, who had worn blue colour clothes. Out of those persons, the present appellant abused son of the complainant Jabbar and inflicted knife blow upon Aziz Kasam Sama on his back. Amin Latif Sama also stabbed his son Jabbar on the back, neck and hand. Sattar Jiya Sama stabbed his son Ishaq on the back and on the left side of the body in the rib cage and remaining two persons also beaten up all of them. During the quarrel, nephew of the complainant Aziz and his two sons sustained serious injuries, and therefore, the complainant and his other son Ismail and another nephew Akbar Haji took them to hospital. During the treatment, nephew of the complainant Aziz succumbed to the injury and expired and two sons of the complainant viz. Jabbar and Ishaq sustained serious injuries. As per the complaint, the reason behind the quarrel was that before ten days of the incident, the present appellant had beaten nephew of the complainant Hussain Kamal, and therefore, keeping grudge in mind the assailants formed unlawful assembly and stabbed sons of the complainant and stabbed to death nephew of the complainant – Aziz Kasam Sama. 3.2 As can be seen from the record, on the same day i.e. on 04.04.2011 FIR being CR No.I-58 of 2011 was also lodged by the present appellant Osman Umar Sama for the offences punishable under Sections 147, 148, 149, 324, 506(2) of the IPC wherein it was stated that the present appellant had come for dinner in Maruti Fronti car and after parking the car, he went for lunch and after completion of lunch at around 12:30 when he was washing his hands outside the Jamatkhana at that time Ismail Sama (son of the complainant) abused him and asked that why he was throwing water on him. The appellant replied that he was not throwing any water on him and due to that heated arguments were exchanged between them and Ismail slapped the appellant. At that time, some people intervened and separated them. Thereafter Ismail called his brother Ishaq, father Noormamad and Aziz Haji Kasam. All of them came with sticks and started beating them including on head. At that time, Amin Latif Sama also tried to intervene, but he was also beaten on head with stick. He also sustained knife injury on his right hand. Thereafter Ismail called his brother Ishaq, father Noormamad and Aziz Haji Kasam. All of them came with sticks and started beating them including on head. At that time, Amin Latif Sama also tried to intervene, but he was also beaten on head with stick. He also sustained knife injury on his right hand. According to complaint filed by the appellant, the accused together broken glasses of the car and Kamal Haji also tried to separate them. 3.3 Ultimately, police started investigation in respect of FIR being CR No.I-57 of 2011 and charge sheet also came to be filed before the Court of learned Chief Judicial Magistrate, Bhuj-Kachchh which came to be registered as Criminal Case No.1024 of 2011 and since the offence alleged against the accused persons was Sessions triable, the case was committed to the Court of Sessions under Section 209 of the Code, 1973, which came to be registered as Sessions Case No.52 of 2011. On committal, the case was transferred and placed for trial before the learned Additional Sessions Judge, Bhuj-Kachchh, who framed the charge vide Exh.14 for the alleged offence. The charge was read over and explained to the accused. The plea of each of the accused came to be recorded vide Exhs. 15, 16, 17, 18 and 19, wherein accused persons pleaded not guilty of the charge and claimed to be tried. In order to bring home the charges levelled against the accused, the prosecution examined, in all, 27 witnesses and relied upon their oral testimonies. The prosecution also produced 29 documents viz. complaint, inquest panchnama, postmortem note, postmortem report, recovery of weapons, dying declaration, FSL reports, etc. After leading the evidence of the prosecution witnesses, the learned APP submitted closing purshis and thereafter the learned trial Judge explained the accused the circumstances appeared against them in evidence of the prosecution witnesses and recorded their further statement under Section 313 of the Code, 1973. In their further statements, the accused denied the case of prosecution in entirety. However, no defence witness was examined by the accused persons. At the end of the trial, upon appreciation, evaluation and scrutiny of the evidence on record, the learned Additional Sessions Judge, Bhuj-Kachchh vide judgment and order dated 01.07.2014 below Exh.122 passed in Session Case No.52 of 2011 convicted and sentenced the accused Nos.1 to 5, as stated above. However, no defence witness was examined by the accused persons. At the end of the trial, upon appreciation, evaluation and scrutiny of the evidence on record, the learned Additional Sessions Judge, Bhuj-Kachchh vide judgment and order dated 01.07.2014 below Exh.122 passed in Session Case No.52 of 2011 convicted and sentenced the accused Nos.1 to 5, as stated above. 3.4 The original accused Nos.2 to 5 were also convicted and punishment of fine only was imposed upon them. The accused Nos.2 to 5 paid the amount of fine and accepted the judgment of the learned Sessions Judge. The present appeal is preferred only by accused No.1 i.e. the present appellant challenging the judgment and order of conviction and sentence. 4. We have heard learned advocate Mr. Darshan Varandani, appearing for the appellant and Mr. J.K.Shah, learned APP for the State respondent. 4.1 At the outset, learned advocate Mr. Varandani submitted that the appellant is in jail since 9 years and 9 months and considering the fact that the deceased Aziz Kasam Sama has died, it is not in dispute that the incident has occurred and the crime has taken place. However, he submitted that considering the fact that there was a free fight and the deceased died due to single knife blow on his back, he is confining this appeal and arguments only for the purpose of converting the conviction of the present appellant from Section 302 to Section 304 Part-II of the IPC and for reducing the sentence imposed upon the appellant accordingly. Hence, the present appeal was heard and considered keeping the aforesaid facts in mind. 4.2 First of all, learned advocate Mr. Varandani took us through the postmortem report and from the postmortem report he drew our attention to Column No.17 wherein nature of injury is mentioned, which reads as under: “A single Tranverse stab would in (Rt) 7th intercostals space slightly lateral to mid line of (Rt.) thorax approx 5 cm x 1 cm x cavity deep. No any other injury over any part of body seen” 4.3 Thereafter, Mr. Varandani took us through Column No.23 and shown the cause of death, which reads as under: “Cardio – respiratory failure following Hemorrhagic shock following injury to vital organs (Rt. lung & liver).” 4.4 Learned advocate Mr. No any other injury over any part of body seen” 4.3 Thereafter, Mr. Varandani took us through Column No.23 and shown the cause of death, which reads as under: “Cardio – respiratory failure following Hemorrhagic shock following injury to vital organs (Rt. lung & liver).” 4.4 Learned advocate Mr. Varandani submitted that postmortem report clearly indicates that there was a single blow which resulted into death of the deceased, and therefore, the presumption must be drawn in favour of the accused that he had neither intention nor knowledge to kill the deceased. To substantiate the aforesaid contention, learned advocate Mr. Varandani took us through the deposition of the complainant as well as eye witnesses. He first took us through the deposition of the complainant PW- 1 Noormamad Umar Sama Exh.45 and from his deposition he pointed out that even as per the version of the complainant PW-1, who happens to be uncle of the deceased, it clearly appears that the present appellant ran after Jabbar with knife and Jabbar tried to run away, at that time, deceased Aziz came and the appellant gave a knife blow on the back of deceased Aziz. From his cross-examination, learned advocate Mr. Varandani pointed out that it was the say of PW-1 Noormamad that while going for lunch they did not carry any dhoka (wooden stick) with them. 4.5 Learned advocate Mr. Varandani on the basis of the aforesaid deposition submitted that the deposition of PW-1 Noormamad reveals that the present appellant though was having knife in his hand was running after Jabbar and accidentally deceased Aziz came in between and deceased gave knife blow on his back. He further submitted that there was an omission on the part of PW-1 Noormamad as he concealed the fact about carrying Dhoka (wooden stick) while going for dinner. 4.6 Learned advocate Mr. Varandani further submitted that if statement of PW-1 Noormamad and PW- 2 Jabbar Sama Exh.47 are read along with deposition of PW-27 Hirabhai Ramabhai Desai Investigating Officer Exh.105, such omission would resurface and can be seen clearly. Thereafter he took us through the deposition of PW-2 Jabbar Noormamad Sama Exh.47 and submitted that even Jabbar in examination-in- chief categorically stated that the appellant was coming to assault Jabbar by holding knife and as he moved aside, the appellant gave knife blow to the deceased Aziz, who happened to be his cousin. Thereafter he took us through the deposition of PW-2 Jabbar Noormamad Sama Exh.47 and submitted that even Jabbar in examination-in- chief categorically stated that the appellant was coming to assault Jabbar by holding knife and as he moved aside, the appellant gave knife blow to the deceased Aziz, who happened to be his cousin. From his cross-examination, learned advocate Mr. Varandani pointed out that PW-2 Jabbar categorically stated in his cross-examination that “it is not true that when we left the hotel we were carrying dhokas (wooden sticks) in hands”. He further pointed out from the cross-examination that PW-2 Jabbar denied in his cross-examination that he did not give a statement before the police to the effect that as the other side started beating them, and since they were also carrying dhokas (wooden sticks), they started beating the other side. Learned advocate further submitted that he will point out the omissions on the part of PW-2 Jabbar from the deposition of PW-27 Hirabhai Ramabhai Desai, who was Investigating Officer. 4.7 Learned advocate Mr. Varandani thereafter took us through the deposition of PW-4 Ismail Noormamad Sama Exh.51 and pointed out from his examination in chief that it was categorically deposed by PW-4 that on 04.04.2011 he went for lunch hosted on account of marriage of Majid and at around 12.00 in the noon there was some verbal spat took place between him and Osman Umar Sama. From his cross-examination he pointed out that in the cross-examination of PW-4 he admitted the fact that after taking lunch, near the taps for washing hands, verbal altercation took place between him and the appellant and PW-4 admitted that he did not disclose before the police while giving his statement that at 12.00 in the noon near the taps for hand wash, he met appellant – Osman Umar Sama. 4.8 Learned advocate Mr. Varandani took us through the deposition of PW-5 Asif Ramju Turk Exh.52, who happened to be panch witness and signed the panch rojkam of scene of offence, in his examination-in-chief he stated that there were blood stains on the wall of Masjid and some blood stains were on the floor as well. In his examination-in-chief, PW-5 stated that at the place of incident there was a Maruti fronti 800 and on the backside of the said car there were blood stains. Learned advocate Mr. In his examination-in-chief, PW-5 stated that at the place of incident there was a Maruti fronti 800 and on the backside of the said car there were blood stains. Learned advocate Mr. Varandani pointed out from cross-examination of PW-5 that the glasses of the car were broken. Mr. Varandani also took us through the panchnama of the scene of offence and from that panchnama he pointed out that there was a specific mention that front and rear glasses of the Maruti car were broken and even left side rear window of the car was also broken (in the panchnama it is mentioned as empty side window). From the panchnama Mr. Varandani also pointed out that even a dhoka (wooden stick) also was found on the right side of the Maruti car lying on the surface having a length of 39” and width of 1.5” and blood stain was also there on the said dhoka (wooden stick). Learned advocate Mr. Varandani on the basis of the aforesaid deposition of the panch witnesses and panchnama of site of offence submitted that the deposition of PW-5 Asif Ramju Turk Exh.52 clearly establishes that there was a free fight between two sides and that lead to death of the deceased, which was not at all intended or preplanned, but was a result of heat of moment. 4.9 Learned advocate Mr. Varandani thereafter took us through the deposition of PW-6 Dr. Manikant Shrinath Mishra Exh.54, who carried out postmortem and from that he drew our attention to the fact that even in his deposition PW-6 has categorically mentioned that there was only one stab would found on the body of deceased. Thereafter learned advocate Mr. Varandani took us through the dying declaration of Jabbar Noormamad Sama recorded on 05.04.2011 before the Executive Magistrate, Bhuj at Exh.78 wherein he categorically stated that the quarrel took place between the accused and his brother Ismail at Jamatkhana. 4.10 Learned advocate Mr. Varandani then took us through the deposition of PW-12 Akbar Mamadbhai Sama Exh.79 and from his examination-in-chief he pointed out that even PW-12 categorically stated that during the lunch in the Jamatkhana some verbal altercation took place between the appellant and Ismail. Thereafter, learned advocate straightaway took us through the deposition of PW-27 Hirabhai Ramabhai Desai, Investigating Officer Exh.105, who carried out the investigation. From his deposition, learned advocate Mr. Thereafter, learned advocate straightaway took us through the deposition of PW-27 Hirabhai Ramabhai Desai, Investigating Officer Exh.105, who carried out the investigation. From his deposition, learned advocate Mr. Varandani pointed out that in his crossexamination PW-27 has categorically stated that he took the statement of PW-2 Jabbar Sama on the date of incident itself and in his statement PW-2 Jabbar stated that since the other side started beating them and as they were also carrying dhokas (wooden sticks), they also started beating the other side. PW-27 in his cross-examination also categorically stated that, in the statement recorded before him Jabbar had categorically stated that quarrel took place between Ismail and the appellant in the Jamatkhana and he has also stated in his statement before the Investigating Officer that the appellant - Osman Sama took out knife and tried to give a blow to Jabbar, but as Jabbar moved aside, the knife blow was inflicted to his cousin Aziz. 4.11 From the cross-examination of PW-27, Mr. Varandani also pointed out that the Investigating Officer has stated that even Ishaq Sama during the course of investigation gave statement before the Investigating Officer that when he was going for lunch, he was told by the people who already had the lunch and coming out from the Jamatkhana, that some quarrel took place between Ismail and the appellant, and therefore, he called up Jabbar and in turn Jabbar asked him to come to his hotel and that the dhokas (wooden sticks), which they were carrying, were used for beating the other side. From the said crossexamination, it was also pointed out by Mr. Varandani that even PW-4 Ismail has given statement to the Investigating Officer that at 12.00 in the noon in the Jamatkhana near water stand he met the appellant - Osman Sama and there was some verbal altercation between them took place and thereafter he went to take the lunch. From his cross-examination, it was also pointed out by learned advocate Mr. Varandani that the Investigating Officer categorically stated that during the investigation it was revealed that some quarrel took place between Ismail and the appellant and thereafter Ismail called up his brother at his hotel and thereafter Jabbar, Noormamad and Aziz gathered at hotel and from there they carried dhokas (wooden sticks) and came to Jamatkhana and thereafter the incident took place. 4.12 Thereafter learned advocate Mr. 4.12 Thereafter learned advocate Mr. Varandani referring to the observations made in para 50 of the impugned judgment, submitted that even the learned Additional Sessions Judge also believed that there was a free fight between two sides and the offence was not pre-planned or meeting of minds prior to the incident and he has also believed that there was no evidence to indicate that there was a pre-plan or conspiracy to kill the deceased and in spite of having observed that there was a free fight and there was no pre-plan or conspiracy, yet the appellant is convicted under Section 302 of IPC and has wrongly been sentenced to life imprisonment. 4.13 Learned advocate Mr. Varandani mainly contended that the single knife blow given on the back of the deceased Aziz would not be sufficient to convict the appellant for offence under Section 302 of the IPC. He further submitted that when it is proved that there was no motive or pre-plan or conspiracy or premeditation or meeting of minds, the appellant ought not to have been convicted under Section 302 of the IPC. He further submitted that the evidence clearly suggests that there was a free fight between the two sides. He further submitted that the learned Additional Sessions Judge has failed to appreciate the facts in its true perspective that the complainant side also was armed with dhokas (wooden sticks) and panchnama also indicates that there was a free fight. As per the panchnama as well as evidence of PW-5 Asif Ramju Turk Exh.52, the glasses of Maruti car of present appellant were broken. A dhoka (wooden stick) was also found from the scene of offence. Even that dhoka (wooden stick) also had blood stain on it which would indicate that both the sides were involved in free fight. He further submitted that it can be seen from the cross-examination of PW-27 Hirabhai Ramabhai Desai, Investigating Officer that there was some quarrel took place between Ismail and the appellant before the incident took place. Mr. Varandani further pointed out that the aforesaid facts coupled with the fact that the complainant – Noormamad Sama PW-1 himself in his cross-examination has categorically stated that the present appellant tried to give a knife blow to his son Jabbar, but Jabbar moved aside while running and the appellant gave that blow on the back of the deceased. Mr. Varandani further pointed out that the aforesaid facts coupled with the fact that the complainant – Noormamad Sama PW-1 himself in his cross-examination has categorically stated that the present appellant tried to give a knife blow to his son Jabbar, but Jabbar moved aside while running and the appellant gave that blow on the back of the deceased. He further submitted that the resultant effect of all these circumstances emerging from the depositions of witnesses stated herein above, would clearly indicate that there was neither intention nor motive nor knowledge on the part of the appellant to kill the deceased Aziz, and therefore, the conviction of the present appellant under Section 302 of the IPC is erroneous and deserves to be converted into Section 304 Part-II of the IPC. 4.14 Learned advocate Mr. Varandani further submitted that apart from the aforesaid aspects, there is a clear cut omission which can be seen from the deposition of PW-2 Jabbar Sama along with the deposition of PW-27 Hirabhai Ramabhai Desai Investigating Officer Exh.105. He further submitted that in the statement before the Investigating Officer on the date of incident, Jabbar submitted that they were also carrying dhokas (wooden sticks) and as the other side started beating them, they also started beating up the other side with dhokas (wooden sticks). However, the aforesaid facts were omitted by PW-2 Jabbar Sama Exh.47 in his deposition, but this fact had come on record in cross-examination of PW-27 Hirabhai Ramabhai Desai Investigating Officer Exh.105. Same way, PW-4 Ismail also categorically admitted in his deposition that some quarrel between him and the appellant took place in respect of washing hands and throwing water on Ismail and that lead to the unfortunate incident which resulted into death of the deceased. On the basis of the aforesaid contentions, learned advocate Mr. Varandani submitted that the aforesaid facts would clearly establish that the appellant never had any intention or motive to kill the deceased nor there was any knowledge that one blow on the back would result into death of the deceased, and therefore, conviction of the accused is required to be converted from Section 302 to Section 304 Part-II of the IPC. 4.15 In support of his submission, learned advocate Mr. Varandani relied on the judgment of the Hon’ble Apex Court in the case of Lakshmi Singh & Ors. 4.15 In support of his submission, learned advocate Mr. Varandani relied on the judgment of the Hon’ble Apex Court in the case of Lakshmi Singh & Ors. vs. State of Bihar reported in (1976) 4 SCC 394 and submitted that considering the fact that there was a free fight and cross complaints were lodged and injuries were sustained by the appellant as well, the prosecution has suppressed the genesis and the origin of the occurrence of offence and has thus not presented the true version. According to learned advocate Mr. Varandani, in the present case, the prosecution has completely failed to explain the injuries caused to the accused, and therefore, it has completely changed the genesis of the offence, and therefore, considering the fact that the complainant side also had used dhokas (wooden sticks) and had broken the glasses of Maruti car of the appellant and had also beaten him, which can be inferred that the incident took place on account of a free fight between the two sides and in the heat of moment knife blow was given to the deceased, which according to learned advocate Mr. Varandani would not be sufficient evidence to convict the present appellant under Section 302 of the IPC. 4.16 Learned advocate Mr. Varandani then relied upon another judgment of the Apex Court in the case of Nandlal vs. State of Maharashtra reported in (2019)5 SCC 224 and submitted that the incident occurred due to a sudden quarrel between the two sides and there was no premeditation and the evidence on record suggests that the appellant did not take any undue advantage or acted in a cruel manner coupled with the fact that there was a single blow on the back of the deceased, and therefore, the case of the appellant in light of the aforesaid judgment also would fall under exception (4) of Section 300 of the IPC. 5. As against the above, learned APP Mr. J.K.Shah while vehemently opposing the arguments advanced by the learned advocate for the appellant submitted that the learned Additional Sessions Judge has rightly convicted the appellant under Section 302 of the IPC. 5. As against the above, learned APP Mr. J.K.Shah while vehemently opposing the arguments advanced by the learned advocate for the appellant submitted that the learned Additional Sessions Judge has rightly convicted the appellant under Section 302 of the IPC. He further submitted that the record reveals that as per the deposition of PW-1 Noormamad Sama Exh.45 he has categorically stated that before few days some incident had taken place between the informant and the complainant Hussain Kamal, who was beaten by the present appellant and Sattar Jiya and by keeping grudge about the said incident, the appellant had pre-planned the murder of the deceased. Learned APP Mr. Shah further submitted that it is not in dispute by either side that both the sides were attending lunch hosted on account of marriage of Majid and no one would carry knife while going for lunch arranged on the auspicious occasion of marriage. Learned APP further submitted that even if there was a free fight between the two sides, as canvassed by learned advocate Mr. Varandani, learned Additional Sessions Judge has categorically observed that the appellant and the persons accompanying him were carrying knifes even while going for lunch. Usually, people would not carry knife with them while attending any lunch on account of marriage ceremony and that itself is self-sufficient to establish that there was an intention on the part of the appellant to kill the deceased, more particularly, considering the fact that apart from the deceased other persons also sustained injuries which would clearly establish that there was a clear cut intention on the part of the appellant to kill the deceased, and therefore, he was rightly convicted under Section 302 of the IPC. 6. We have heard both the learned advocate for the appellant and learned Additional Public Prosecutor for the respondent State. We have also perused the record and proceedings and have scrutinized the depositions of the witnesses and also gone through the documentary evidence produced on record. 6.1 Before dealing with the rival contentions of the learned counsel for the parties, we would like to have a close look at some of the relevant provisions. Sections 299 and 300 of IPC read as under: “299. 6.1 Before dealing with the rival contentions of the learned counsel for the parties, we would like to have a close look at some of the relevant provisions. Sections 299 and 300 of IPC read as under: “299. Culpable homicide — Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. Explanation 1.— A person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death. Explanation 2.— Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skillful treatment the death might have been prevented. Explanation 3.— The causing of the death of child in the mother’s womb is not homicide. But it may amount to culpable homicide to cause the death of a living child, if any part of that child has been brought forth, though the child may not have breathed or been completely born. 300. Murder — Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or - (Secondly) — If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or - (Thirdly) — If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or — (Fourthly) — If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. Exception 1 — When culpable homicide is not murder.— Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. The above exception is subject to the following provisions: (First) — That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. (Secondly) — That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. (Thirdly) — That the provocation is not given by anything done in the lawful exercise of the right of private defence. Explanation — Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. Exception 2 — Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. Exception 3 — Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused. Exception 4 — Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. Explanation — It is immaterial in such cases which party offers the provocation or commits the first assault. Explanation — It is immaterial in such cases which party offers the provocation or commits the first assault. Exception 5 — Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.” 6.2 We have examined whether the case would fall under culpable homicide and would be treated as murder defined in Section 300 or would fall under Exception 4 of Section 300 of the IPC. Therefore, we would like to describe the manner and method in which the incident has taken place and how the person was done to death but before that we would like to reproduce section 304 of the IPC which is as under: “304. Punishment for culpable homicide not amounting to murder:- Whoever commits culpable homicide not amounting to murder shall be punished with [imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.” 6.3 From the record, it emerges that the present appellant undoubtedly gave a blow to deceased Aziz. Further, one cannot overlook the fact that the complainant himself has stated in his deposition that the appellant tried to give a knife blow to Jabbar, but Jabbar ran away and moved aside, and therefore, that knife blow was inflicted to deceased Aziz on his back. The aforesaid fact would clearly indicate that the knife blow was not intended to be given to the deceased nor there was any intention to kill the deceased and since it was given on the back of the deceased no knowledge can be attributed to the appellant that one blow on the back of the deceased would result into his death. 6.4 We also cannot ignore the fact that there was a free fight between two sides. 6.4 We also cannot ignore the fact that there was a free fight between two sides. The record clearly establishes that the complainant side also was armed with dhokas (wooden sticks) and free fight took place on account of some quarrel between Ismail and the appellant in Jamatkhana at around 12.00 noon with regard to washing of hands. As can be seen from the record that PW-4 Ismail also admitted the fact that at around 12.00 noon some quarrel took place between the appellant and the complainant side came with dhokas (wooden sticks) and thereafter the unfortunate incident took place. This would clearly indicate the nature of incident which took place in the spur of moment and was a result of verbal altercation between Ismail and the appellant. Since the quarrel between them lead to the unfortunate incident, we do not find any premeditation or meeting of minds which has resulted into the killing of the deceased Aziz. 6.5 Even as per the medical evidence, there was only one blow on the back of the deceased. Furthermore, the panchnama of the scene of offence also goes to show that the incident took place at Jamatkhana on the street. Maruti fronti belonging to the appellant also was also damaged as the glasses of car were broken. Dhoka (wooden stick) was also found which was allegedly used by the complaint side to beat the appellant and persons accompanying him. This would go to show that there was a free fight between the two sides and suddenly in a spur of moment the appellant pulled out the knife and tried to give a blow to Jabbar and when Jabbar ran away and moved aside the blow was given to Aziz which resulted into his death. We are satisfied that though the deceased died because of the knife blow given by the appellant to the deceased, no intention or knowledge can be attributable to the appellant that he had any intention or knowledge that a single blow on the back of the deceased would kill him. Therefore, we are convinced that the conviction of the present appellant is required to be converted from Section 302 of the IPC to Section 304 Part-II of the IPC. 6.6 As far as the contention of learned APP Mr. Therefore, we are convinced that the conviction of the present appellant is required to be converted from Section 302 of the IPC to Section 304 Part-II of the IPC. 6.6 As far as the contention of learned APP Mr. Shah that the learned Additional Sessions Judge has rightly convicted the appellant under Section 302 of the IPC as no prudent man would carry knife with him while going to attend the lunch organized on account of marriage is concerned, we are of the view that no doubt it is true that the appellant and persons accompanying him were carrying knives with them. However, learned APP could not establish that there was any enmity between the deceased and the appellant or that there was any intention on the part of the appellant to kill the deceased. The complainant himself has stated in his deposition that the appellant tried to inflict knife blow on Jabbar, but as Jabbar ran away and moved aside, the blow was inflicted on deceased Aziz. Therefore, though the appellant was carrying knife with him the prosecution could not establish motive can be attributed to the appellant to the extent that there was any intention on his part to kill the deceased. Had there been any intention to kill the deceased, in that case, considering the fact that there was a free fight between two sides, the appellant could have inflicted more blows to the deceased. Therefore, we are convinced that the conviction of the appellant under Section 302 of the IPC is required to be altered to Section 304 Part-II of the IPC. 7. Accordingly, this appeal is partly allowed. The judgment and order of conviction and sentence dated 01.07.2014 rendered by the learned Additional Sessions Judge, Bhuj-Kachchh in Sessions Case No.52 of 2011 for the offences punishable under Section 302 of the Indian Penal Code, 1860 is converted into conviction under Section 304 Part-II of the Indian Penal Code, 1860 and accordingly sentence of life imprisonment is reduced to sentence of the period of sentence already undergone and the appellant – Osman Umar Sama shall be released from the prison forthwith, if not required in any other case. Rest of the judgment and order of the learned Additional Sessions Judge, Bhuj-Kachchh is upheld and confirmed. 8. Registry is directed to send the Records and Proceedings to the concerned trial Court forthwith. Rest of the judgment and order of the learned Additional Sessions Judge, Bhuj-Kachchh is upheld and confirmed. 8. Registry is directed to send the Records and Proceedings to the concerned trial Court forthwith. Registry is also directed to communicate this order to the concer*ned Jail Authority by email message forthwith.