JUDGMENT : A.J.DESAI, J. [1.0] By way of present criminal appeal under Section 374 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “CrPC”), the appellant – original convict has challenged the judgment dated 16.04.2013 passed by the learned Additional Sessions Judge, Mehsana in Sessions Case No.62 of 2011, by which the appellant has been convicted for the offence punishable under Section 302 of the Indian Penal Coded, 1860 (hereinafter referred to as “IPC”) and sentenced to undergo life imprisonment with fine of Rs.5000/- and in default of payment of fine, to undergo six months’ simple imprisonment and also under Section 135 of the Bombay Police Act for which the appellant is sentenced to pay fine of Rs.100/- and in default of payment of fine to undergo 7 days’ simple imprisonment. [2.0] The appeal came to be admitted on 03.07.2013. The Registry has received the Record & Proceedings alongwith paperbook which has been supplied to the learned advocates appearing for the respective parties. [3.0] The case put forward by the prosecution is as under: [3.1] That, one Subhashchandra Rajghar Sharma, resident of Mehsana lodged an FIR with Mehsana Taluka Police Station stating that he is running a hotel in the name of Natraj Hotel at Pal Vasna Cross Road on monthly rent of Rs.10,000/- from 02.09.2010. He disclosed that in all 12 employees were working in his hotel. That, on 03.03.2011 at around 1 to 1.30 p.m., when customers of hotel were having their lunch, the present appellant, deceased Thakor Dashrathji Karmanji (hereinafter referred to as “deceased”) and other persons, who were working as waiters, indulged into a quarrel and when the complainant reached at the place of incident i.e. washing area of utensils, he saw that the appellant herein had given a iron pipe blow on the head of the deceased, pursuant to which the deceased fell down. That, with the help of two to three other waiters, the appellant was caught and was locked in the room of hotel and immediately police was called. The custody of the appellant was handed over to the police and accordingly, the FIR was lodged. That, with the help of two to three other waiters, the appellant was caught and was locked in the room of hotel and immediately police was called. The custody of the appellant was handed over to the police and accordingly, the FIR was lodged. He further declared that he also called 108 ambulance and immediately the deceased was sent to hospital, however the Medical Officer who had taken the deceased in 108 ambulance declared the deceased to be dead and thereafter the deceased was taken to Civil Hospital, Mehsana in a rickshaw. [3.2] The Investigating Officer visited the place of incident, recorded statements of various witnesses including other waiters who were working in the hotel and carried out other procedure like preparing panchnamas of the arrest of appellant, scene of offence and on completion of investigation, submitted the charge-sheet before the competent Court, who in turn committed the case to the learned Sessions Judge, Mehsana having jurisdiction to try the case on hand and the case was numbered as Sessions Case No.62 of 2011. [3.3] The charge Exh.4 came to be framed against the present appellant for the offence punishable under Section 302 of the IPC as well as under Section 135 of the Bombay Police Act. The charge framed against the appellant was denied by the appellant and he pleaded not guilty and accordingly, the prosecution proceeded with the trial. [3.4] The prosecution examined in all 15 witnesses and produced several documentary evidences on record. The appellant – accused did not examine any witness. The learned Sessions Judge after hearing the submissions made on behalf of the appellant as also the learned Public Prosecutor and after scrutinizing the evidence placed and proved on record by the prosecution convicted the present appellant and sentenced him to undergo life imprisonment with fine. Hence, the present appeal. [4.0] Learned advocate Mr. Radhesh Vyas appearing for the appellant at the outset submitted that the appellant does challenge his involvement in the crime but would submit that he would like to argue and satisfy this Court that the case of appellant is of culpable homicide not amounting to murder and would request to convert the conviction and sentence under Section 304 (Part II) of the IPC accordingly. [4.1] In support of his submission he has taken us through the deposition of the complainant viz. [4.1] In support of his submission he has taken us through the deposition of the complainant viz. Subhashchandra Rajghar Sharma (PW-4, Exh.28) and would submit that as per the say of the complainant himself, near the washing area of the hotel, the appellant as well as the deceased had started quarreling and having found hue and cry at the place of incident, which is at a distance of 15 to 20 feet from the hotel, complainant saw the present appellant giving a pipe blow on the head of the deceased pursuant to which the deceased fell down, however he has further stated in his cross-examination that there was no animosity between the appellant and the deceased and that no complaint was made to him by the deceased against the present appellant and even there was no quarrel whatsoever that had ever happened between these two persons. He has also disclosed before the Court that non of the employees had ever made any complaint against the appellant. [4.2] Similar is the say of another waiter viz. Bhatiya Bharatbhai Dahyabhai (PW-5, Exh.29) who has witnessed the incident. This witness has also admitted that some quarrel took place between the deceased and the appellant and due to some unknown reasons they were fighting and during the scuffle itself they had gone to the place of incident where pipe blow was given on the head of the deceased by the appellant. In his cross-examination he has admitted that he had heard altercation between the deceased and he is not aware as to who had given the blows to whom and has further admitted that there was no quarrel in past between the appellant and the deceased. He has also admitted that none of the waiters had any grievance against the appellant herein neither any of the waiters nor the owner of the hotel had any complaint against the present appellant. This was the first occasion where some altercation had taken place between the parties and in a spur of moment the pipe blow was given on the head of the deceased. Similar is the say of another eye-witnesses viz. Popatji Sadaji Thakore (PW-6, Exh.30), Narayangiri Hariramgiri (PW-8, Exh.35) and Puranbhai Padam Bahadur Kashatriya (PW-9, Exh.36), who were working together in the hotel as waiters. All these witnesses have stated that there was no animosity between the deceased and the appellant. Similar is the say of another eye-witnesses viz. Popatji Sadaji Thakore (PW-6, Exh.30), Narayangiri Hariramgiri (PW-8, Exh.35) and Puranbhai Padam Bahadur Kashatriya (PW-9, Exh.36), who were working together in the hotel as waiters. All these witnesses have stated that there was no animosity between the deceased and the appellant. He would submit that the incident has taken place without there being any premeditation and in a sudden fight and in heat of passion on a quarrel wherein the appellant lost his control and gave a single blow of iron pipe on the head of the deceased and therefore, he has submitted that the case of appellant would fall under Exception 4 to Section 300 of the IPC. Insofar as the injury sustained by the deceased is concerned, he would submit that the deposition of Medical Officer Dr. Jayshree Khushal Patel (PW-1, Exh.8) makes it clear that the deceased had sustained a single injury on head which resulted into his death. Thus, it cannot be said that the present appellant had taken undue advantage or acted in a cruel or unusual manner. Hence, the case would fall under Exception 4 to section 300 of the IPC and therefore, would submit that the punishment may be altered under Section 304 (Part II) of the IPC. In support of his above submission, he has relied upon the decision of the Hon’ble Supreme Court in the case of Ranjit Sarkar vs. State of Tripura reported in (2016) 15 SCC 756 and Nandlal vs. State of Maharashtra reported in (2019) 5 SCC 224 and would submit that appellant is behind the bars since more than 10 years and therefore, accordingly, the appellant may be sentenced. [5.0] On the other hand, learned APP has opposed this appeal and supported the reasons assigned by the learned Sessions Judge and would submit that in a trivial quarrel the appellant has used deadly weapon like iron pipe and had given a blow on the vital part i.e. on the head of the deceased which resulted into fracture of occipital region and the person died within no time. He would submit that the force used by the appellant was such that it can be said that the appellant had acted in a cruel and unusual manner. He has also taken us through the deposition of Medical Officer Dr. He would submit that the force used by the appellant was such that it can be said that the appellant had acted in a cruel and unusual manner. He has also taken us through the deposition of Medical Officer Dr. Jayshree Khushal Patel (PW-1, Exh.8), who had performed the post-mortem of the deceased and has also taken us through the post-mortem note (Exh.9). By taking us through the internal injury sustained by the deceased, he would submit that the deceased had sustained fracture of left occipital bone which was 4 cm long continue with linear, irregular, zigzag fracture of temporal bone and would submit that therefore, the case would not fall under Exception 4 to Section 300 of the IPC. He would submit that the incident has taken place in a broad day light in an open place and all the witnesses have stated that the appellant was the agressor and had given a pipe blow on the head of the deceased which resulted into immediate death of his own colleague. He, therefore, would submit that the appeal be dismissed. Learned APP Mr. Shah has not argued more than what has been stated hereinabove. [6.0] We have heard the learned advocates appearing for respective parties at length. Perused the reasoning part of the impugned judgment of conviction and order of sentence and scrutinized the evidence on record in the nature of oral as well as documentary evidence. It is an undisputed fact that the appellant, the deceased and all other eye-witnesses were working as waiter in the hotel which is being run by the complainant viz. Subhashchandra Rajghar Sharma who has disclosed in the FIR that some scuffle took place between the appellant and the deceased and while fighting they went to open place near the washing area and therefore, he also went and found that the appellant gave one blow of iron pipe on the head of the deceased. He has deposed on the same line in his deposition. Similar is the say of other eye-witnesses viz. Popatji Sadaji Thakore (PW-6, Exh.30), Narayangiri Hariramgiri (PW-8, Exh.35) and Puranbhai Padam Bahadur Kashatriya (PW-9, Exh.36). He has deposed on the same line in his deposition. Similar is the say of other eye-witnesses viz. Popatji Sadaji Thakore (PW-6, Exh.30), Narayangiri Hariramgiri (PW-8, Exh.35) and Puranbhai Padam Bahadur Kashatriya (PW-9, Exh.36). [6.1] Scrutinizing the deposition of all the colleagues of the deceased and the appellant as well as considering the say of the complainant, it appears that some scuffle had taken place between the appellant and the deceased in the hotel premises but after taking up the quarrel both, the appellant and the deceased had gone to an open place near the washing area where the appellant used a pipe and gave a single blow on the head of the deceased pursuant to which he fell down. All these witnesses have admitted that there was no animosity between the deceased and the appellant and no complaint was ever made by the deceased against the appellant to even the owner of the hotel about any issue. On the contrary, all of them have stated that there was no complaint against the appellant in past at the instance of any of the co-workers. [6.2] Therefore, it appears that the incident has taken place in a sudden quarrel and in a heat of moment the appellant lost his control and gave a pipe blow on the head of the deceased. It cannot be said that it was a pre-meditated crime and the appellant had intention to kill the deceased. [6.3] Apart from this aspect the deceased has sustained only one injury on the head might be a fracture injury of occipital region but in our opinion it cannot be said that the appellant had taken any undue advantage or acted in a cruel or unusual manner and therefore, we are in agreement with the decisions of the Hon’ble Supreme Court in the cases of Ranjit Sarkar (Supra) and Nandlal (Supra). Therefore, we are of the opinion that the case of the appellant would fall under Exception 4 to Section 300 of the IPC and shall be sentenced accordingly. [7.0] In view of the above discussion, present Criminal Appeal is partly allowed. Therefore, we are of the opinion that the case of the appellant would fall under Exception 4 to Section 300 of the IPC and shall be sentenced accordingly. [7.0] In view of the above discussion, present Criminal Appeal is partly allowed. The impugned judgment and order of conviction dated 16.04.2013 passed by the learned Additional Sessions Judge, Mehsana in Sessions Case No.62 of 2011, whereby the appellant has been convicted for the offence punishable under Section 302 of the Indian Penal Code, 1860 and sentenced to undergo life imprisonment with fine of Rs.5000/- and in default of payment of fine to undergo further six months’ simple imprisonment as also under Section 135 of the Bombay Police Act with fine of Rs.100/- and in default of payment of fine to undergo 7 days’ simple imprisonment, is hereby modified and the appellant is convicted for the offence punishable under Section 304 (Part II) of the Indian Penal Code, 1860 and is sentenced to undergo 10 years’ rigorous imprisonment with fine of Rs.5000/- and in default of payment of fine to undergo further six months’ simple imprisonment. Since the appellant has already undergone sentence of 10 years and 6 months, the appellant shall be immediately released forthwith, if not required in any other offence. Record & Proceedings of the Sessions Case No.62 of 2011 shall be sent back to the Sessions Court, Mehsana forthwith.