JUDGMENT : A.Y. KOGJE, J. 1. The appellant before the Court is a convict for offence under Section 302 of the Indian Penal Code and Section 135 of the Bombay Police Act. The appellant was convicted by the impugned judgment and order dated 23.08.2006 in Sessions Case No. 15 of 2006 by the Sessions Judge, Narmada at Rajpipla. 2. Learned Advocate for the appellant submitted that the appellant has undergone 16 years and 11 months (approximately) of his sentence and thereafter, by order dated 17.02.2023 in Criminal Misc. Application No. 1 of 2022, the appellant was ordered to be enlarged on permanent bail suspending the sentence. 2.1 Learned Advocate for the appellant submitted that the conviction recorded under Section 302 is erroneous. It is argued that from the totality of the facts and circumstances which are emerging on record by way of evidence, the case of the appellant would fall under exception to 4 to Section 300 of the Indian Penal Code. The reason behind making such submission is the fact that the appellant is the son of the deceased-mother and in a conversation which infuriated the appellant, the incident took place when the appellant caused injury on the head of the deceased by using stone which was lying nearby. 2.2 Learned Advocate for the appellant has taken this Court through the evidence of PW-1 Jethabhai Aataliya, Exh.10, who is father of the appellant and husband of deceased-Parvatiben. It is submitted that while they were returning to their home and were walking, the mother had questioned the appellant about being unemployed and hence, while they were crossing construction site, the appellant lifted stone lying nearby and gave blows on the head of the deceased. 2.3 Similar version is given by PW-5 Sunitaben Dineshbhai Vasava, Exh.27, who is the sister of the appellant and daughter of the deceased and PW-1. She has also deposed in the similar version with regard to blows given by the appellant on the head of her mother. 2.4 Learned Advocate has taken this Court through the evidence of independent witness PW-4 Jalamsinh Khatariya, Exh.26 and submitted that though the prosecution claims this witness to be an eyewitness, from the cross-examination, it would be apparent that it was PW-1 Jethabhai Aataliya who had informed this witness about the incident. 2.4 Learned Advocate has taken this Court through the evidence of independent witness PW-4 Jalamsinh Khatariya, Exh.26 and submitted that though the prosecution claims this witness to be an eyewitness, from the cross-examination, it would be apparent that it was PW-1 Jethabhai Aataliya who had informed this witness about the incident. 2.5 Learned Advocate for the appellant submitted that the incident took place at the spur of moment and there was no premeditation to commit the offence and considering the relationship between the deceased and the appellant, there could not have been any intention to commit the offence. 2.6 Learned Advocate for the appellant therefore submitted that even if the injuries caused by blows given by the appellant are sufficient to cause death, however, the nature of incident is indicative of the fact that the offence is murder is not complete, but can be termed to be a culpable homicide, not amounting to murder. 2.7 Learned Advocate for the appellant then referred to and relied upon decision of the Apex Court in case of Surinder Kumar vs. Union Territory of Chandigarh, 1989 (2) SCC 217 , to submit that in similar set of facts, the incident was considered as falling under exception No. 4 to Section 300 of the Indian Penal Code. 2.8 Reliance is also placed on the decision of the Apex Court in case of Vijender @ Bijjo vs. State (Govt. NCT of Delhi), 2020 (19) SCC 735 , wherein considering the nature of weapon which was used in carrying out assault on the sister of the convict and with regard to the situation arose therein, the case was considered under Section 304 Part-II rather than conviction under Section 302 of the Indian Penal Code. 2.9 Learned Advocate has lastly relied upon the decision of the Apex Court Pardeshiram vs. State of M.P. 2021 (3) SCC 238 and submitted that there the deceased was given blows with stone on the head and case was considered as an offence under Section 304 Part-I and the sentence was modified to the sentence already undergone. 3. 2.9 Learned Advocate has lastly relied upon the decision of the Apex Court Pardeshiram vs. State of M.P. 2021 (3) SCC 238 and submitted that there the deceased was given blows with stone on the head and case was considered as an offence under Section 304 Part-I and the sentence was modified to the sentence already undergone. 3. As against this, learned APP has opposed the appeal and submitted that the Sessions Court has rightly held that intention of the appellant was to commit murder as even after the deceased Parvatiben was given first blow with stone by the appellant when she fell down, the appellant set over the deceased and inflicted three more blows on the head and vital parts of body and caused grievous injuries. It is submitted that this sequence of the appellant giving three blows even after the deceased fell down is a cruel act for which the case of the appellant would not fall in exception No. 4 to Section 300 of the Indian Penal Code. 3.1 Learned APP has emphasized on the deposition of PW-2 Dr. Satyamshivamsundaram Devdattprasad Singh, Exh.19, who is the Medical Officer and had performed postmortem and submitted that the injuries caused on the vital part of body are of such a nature that these injuries are caused by independent blows. 4. Having heard learned Advocates for the parties and having perused documents on record, it appears that the incident was reported under FIR being CR No. 06 of 2006 registered with Dediyapada Police Station. Upon investigation, charge sheet was filed and ultimately sessions was committed being Sessions Case No. 15 of 2006, where vide Exh.6, charge came to be framed, gist of which is that at about 16:00 hours on 13.02.2006 at a road side near the bridge of Karjan river on Nimarvan to Relva Bharad road of Dediapada taluka in Narmada district, the appellant, despite having knowledge and understanding that causing injury on head of Parvatiben W/o Jethiyabhai with a stone would result into her death, inflicted four or five stone-blows on the left eye, forehead and head of deceased Parvatiben W/o Jethiyabhai Hathiya and caused serious injuries to deceased Parvatiben W/o Jethiyabhai Hathiyabhai and committed her death and thereby, committed an offence punishable under Section-302 of Indian Penal Code. Further, a charge is framed against the appellant that though the Additional District Magistrate of Narmada district had issued a notification of prohibition to keep arms from 06.02.2006 to 20.02.2006, the appellant on 13.02.2006, armed with a stone in public and threw it and committed a breach of the notification of prohibition to keep arms and thereby, committed an offence punishable under Section-135 of the Bombay Police Act. 5. PW-1 Jethabhai Aataliya, Exh.10 is husband of the deceased and father of the appellant. In his deposition, in evidence in chief, he has indicated that while they were returning from social function and while walking towards their home, the deceased and son were walking in front side whereas this witness and his daughter-PW-5 Sunitaben Dineshbhai Vasava, Exh.27 were walking behind. At that stage, when they reached to a place where construction of road was going on, deceased questioned the appellant for being unemployed and then by lifting the stone lying nearby, he delivered blow on the forehead of the deceased and with the same stone, he gave three blows at three places on the head and thereafter he sat over the chest of the deceased. 6. PW-5 Sunitaben Dineshbhai Vasava, Exh.27-sister of the appellant has also given similar version. However, in her deposition, she has stated that one blow of stone was given and mother fell down. The independent witness PW-4-Jalamsinh Khatariya, Exh.26 though in his chief has narrated the incident as by PW-1, however, in cross-examination, he has clearly answered that he was called by PW-1 to the place of incident and narrated how incident took place. Therefore, in the opinion of the Court, this independent witness will not be in the category of eyewitness. 7. PW-2 Dr. Satyamshivamsundaram Devdattprasad Singh, Exh.19, who has performed postmortem has indicated that the injuries caused on the head was sufficient to cause death, thereby establishing homicidal death of the deceased. He has also opined that possibility of causing injuries by repetitive blows with use of muddamal article No. 3-stone cannot be ruled out. 8. The appellant had claimed innocence and that the incident had not taken place at his hand and tenor of the cross-examination would indicate that the incident had allegedly takan place at the hands of the informant and his other son-Lavji, but the appellant was made a scapegoat. 8. The appellant had claimed innocence and that the incident had not taken place at his hand and tenor of the cross-examination would indicate that the incident had allegedly takan place at the hands of the informant and his other son-Lavji, but the appellant was made a scapegoat. However, there does not appear to be anything on record by way of evidence, except for the suggestion made in the cross-examination of the Medical Officer that the injuries caused to the deceased possible by heavy stick. 9. The Court has taken into consideration decision of the Apex Court in case of Surinder Kumar (supra), wherein the Apex Court has examined facts of the case and applied provisions of Section 300, exception No. 4. In Para-6, it is held as under: “6. To invoke this exception four requirements must be satisfied, namely: (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly.......” 10. Similarly, in case of Pardeshiram (supra) also, considering the facts of the case, having given stone blow in the hit of passion, the offence was considered to be a culpable homicide, not amounting to murder. 11. From the sequence of events in the present case as is evident from the depositions and the eyewitnesses, this Court is of the view that the appellant is the son and deceased being mother. 11. From the sequence of events in the present case as is evident from the depositions and the eyewitnesses, this Court is of the view that the appellant is the son and deceased being mother. From the evidence of PW-1, it is coming out that son was confronted by the deceased about his unemployment, which infuriated the appellant and by making use of stone lying nearby, inflicted blow on the head. 12. Apparently, there is no evidence to establish that there was premeditation to commit the crime, but upon being questioned about his unemployment, infuriated the appellant and in the fit of rage, blows were given. 13. Though learned APP has tried to support findings of the Sessions Court that the appellant acted cruelly as even after falling down, the appellant climbed over the body of the deceased and inflicted more blows by stone on the head, however, such sequence is not coming out on record as none of the witnesses pointed out that after falling down, the appellant has delivered further blows. The detailed postmortem goes on to indicate that no injuries were found on the ports of the body like chest, torso, etc., which otherwise would indicate force on the body of the deceased if the appellant would have climbed and set on her body. In absence of any such evidence, the Court is not inclined to believe that the appellant had behaved cruelly or had taken undue advantage and behaved in an unusual manner. Clearly, sequence of events would indicate that the incident was not premeditated and was in the heat of moment and therefore, exception No. 4 to Section 300 would be clearly attracted and therefore, offence is a culpable homicide, not amounting to murder and hence, attracting punishment prescribed under Section 304 Part-I. 14. In view of the aforesaid reasoning, the appeal is partly allowed. The impugned judgment and order of the Sessions Judge, Narmada at Rajpipla dated 23.08.2006 in Sessions Case No. 15 of 2006 is hereby modified. The conviction of the appellant under Section 302 of the Indian Penal Code is hereby set aside. The appellant is ordered to be convicted for offence of culpable homicide not amounting to murder, thereby attracting punishment under Section 304 Part-I of the Indian Penal Code and is hereby sentenced to undergo imprisonment for a term of 10 years. The conviction of the appellant under Section 302 of the Indian Penal Code is hereby set aside. The appellant is ordered to be convicted for offence of culpable homicide not amounting to murder, thereby attracting punishment under Section 304 Part-I of the Indian Penal Code and is hereby sentenced to undergo imprisonment for a term of 10 years. It is reported that the appellant has already undergone 16 years and 11 months imprisonment and that today, he is, under suspension of sentence, on bail. He is ordered to be enlarged, if not required in any other offence. Bail bond stands cancelled. 15. R&P to be sent back to the concerned trial Court.