JUDGMENT : SANDEEP N. BHATT, J. 1. 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 and order dated 31.10.2012 passed by the Additional District and Sessions Judge, Banaskantha-Palanpur in Sessions Case No.79 of 2011, by which, the appellant has been convicted for the offence punishable under Section 302 of the Indian Penal Code (hereinafter referred to as “ IPC ”) and sentenced to undergo rigorous imprisonment for life with fine of Rs.500/-, in default, to undergo simple imprisonment for 15 days. 2. The Appeal came to be admitted on 7.5.2013. The Registry has received the Record and Proceedings along with the paper-book which has been supplied to the learned advocate for the respective parties. 3. The case put forward by the prosecution is as under : 3.1 That the complainant-Prakashbhai Punambhai Patani was engaged in the business of vending fruits on chhapi highway road near pick-up stand. On 31.8.2011, at about 8.00 a.m., the complainant had come to his place of business and his brother Mahesh had also come on the chhapi highway, near petrol pump for labour work. In the evening at about 7.00 p.m., the deceased Maheshbhai had eaten a banana from the lorry of the complainant and thereafter, he had informed the complainant that he is going home. It is further the case of the prosecution that after the brother of the complainant had left for homw, at some distance, accused Mukesh Patani started having verbal altercation with deceased Mahesh and therefore the complainant had gone there and heard that the accused-Mukesh was asking the deceased-Mahesh to return back Rs.200/- which he had given to him. The deceased informed the brother of the complainant Mukesh that he was not having money with him and he would return the said amount within two days. On this, the accused got provoked and he started abusing the deceased and thereafter he, in the heat of passion, gave a blow on the chest of the deceased with 'Khilasari' type of weapon due to which the brother of the complainant started shouting and therefore the accused escaped from the place of offence. On this, the accused got provoked and he started abusing the deceased and thereafter he, in the heat of passion, gave a blow on the chest of the deceased with 'Khilasari' type of weapon due to which the brother of the complainant started shouting and therefore the accused escaped from the place of offence. The complainant and others took the deceased to the civil hospital at Siddhpur, from where the deceased was referred to hospital at Mehsana and on the way to Mehsana, the brother of the complainant died and therefore his dead body was brought at Civil Hospital, Siddhpur. The FIR was lodged with Chhapi police station, which was registered as C.R.No.I-71 of 2011. 3.2 The investigating officer, after completion of the investigation, had filed the chargesheet before the competent court. As the case was exclusively triable by the Sessions Court, the same was committed to the Sessions Court. 3.3 The charge came to be framed against the present appellant for the offences punishable under Sections 302 , 504 of IPC and Section 135 of the B.P.Act at Exh.6. The charge framed against the appellant was denied by the appellant and he pleaded not guilty and claimed to be tried. 3.3 The charge came to be framed against the present appellant for the offences punishable under Sections 302 , 504 of IPC and Section 135 of the B.P.Act at Exh.6. The charge framed against the appellant was denied by the appellant and he pleaded not guilty and claimed to be tried. 3.4 In order to bring home the charge, the prosecution has examined many witnesses and produced several documentary evidences on record, which are mentioned in paragraph no.5 as under: Oral Evidence Exhibit No. Name of Witness 12 Sureshbhai Jalabhai Patni – Panch Witness 16 Prakashbhai Punambhai Patni – Complainant 19 Bipinkumar Karshanbhai Prajapati – Medical Officer – Siddhapur 23 Bhavinkumar Kachrabhai Joshi – Panch Witness 25 Dilipbhai Babubhai Patni – Panch Witness 27 Manubhai Rajanbhai Patni – Panch Witness 28 Ganeshbhai Amthabhai Patni – Panch Witness 30 Pravinbhai Punambhai Patni – Panch Witness 31 Virmaji Ghemarji Thakor – Panch Witness 32 Natvarbhai Hemabhai Makwana – Panch Witness 34 Juthaji Savaji Rajput – Panch Witness 35 Prahladbhai Shankarbhai – Witness 36 Mafabhai Shankarbhai Raval – Witness 37 Savabhai Bhikhabhai Loh – Witness 38 Mansungbhai Fatabhai Mahival – Witness 40 Laxmanbhai Manjibhai Karen – Author of making map of place of incident – Talati-cum-Mantri, Chhapi 42 Kantilal Babulal – PSO 46 Amthabhai Mulabhai – ASO 49 Chaturbhai Devabhai Maru – Witness 50 Sohanji Takhaji Thakor – ASI 53 Ayubkhan Jamiyatkhan Chauhan – I.O. 55 Alpeshbhai Narsinhbhai Gabani – I.O. Documentary Evidence Exhibit No. Particulars 13 Inquest Panchnama 17 Complaint 20 Yadi for P.M. 21 P.M. Note 24 Panchnama of Place of Offence 26 Panchnama of recover of clothes from the dead-body 29 Panchnama of body of accused 33 Panchnama of the weapon - ‘Khilasari’ used in the offence 41 Map of place of offence 43 Special Report of major offence 44 Index 45 Telephonic Vardhy Register 47, 47 Receipt showing the signatures of Panchas 51, 52 Receipt for identification of a dead-body and handing over the same 56 Report send to D.S.P., Palanpur 57 Report of calling the FSL Van 58 Report of the FSL Van 59 Yadi sent to the Executive Magistrate for Inquest Panchnama 60 Report of postmortem examination 61 Yadi sent to the Mamlatdar, Vadgam for preparing map of place of offence 62 Receipt of F.S.L. 63 Entry of Outward 64 F.S.L. Report 65 Serological Report 3.5 The appellant-accused did not examine any witness in support of his case. The 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. 4. Hence, the present appeal before this Court. 5. We have heard learned advocate Mr.Lokhandwala for the appellant and learned APP Mr.Mehta for respondent- state and also perused the material placed on record including the judgment and order. 6. Learned advocate Mr.Lokhandwala has appeared on behalf of the appellant and submitted that the appellant has been falsely involved and implicated in the case; that the prosecution has failed to establish its case beyond reasonable doubt; even assuming the case of the prosecution to be true, then also, the case would not fall under Section 302 of the IPC but would fall under Section 304 of the IPC as offence is of such nature that it is an act of culpable homicide not amounting to murder; that though the prosecution a total of 22 witnesses, only two eye witnesses have supported the case of the prosecution; the remaining eye witnesses have turned hostile; the panchas have also turned hostile; that from the post-mortem report at page no.52, it is evident that it is a case of single blow injury and the accused struck only a single blow and did not repeatedly attack the deceased. He submitted that there is no evidence that the accused intended, planned or premeditated to kill the deceased nor was it an act of vengeance and it is the case of sudden quarrel without any premeditation in the heat of the moment. He, submitted that appellant has already undergone 10 years 10 months and 23 days of imprisonment behind bar and the benefit of exception 4 of Section 300 of IPC be given to the appellant and the offence may kindly be converted from Section 302 to Section 304 Part-II of IPC and the period of sentence, he has already undergone be considered as sufficient. 7. 7. On the other hand, learned APP Mr.Mehta has opposed the appeal and has supported the reasons assigned by the Sessions Judge and has submitted that in a trifle quarrel, the appellant had used deadly weapon like khilasari and inflicted blow on the vital part of the body i.e. on the chest, which resulted into deep wound and he died on the way of hospital. He has taken us through the depositions of the medical officers and also through the postmortem report. He, however, submitted that it was a single blow hit on the deceased. The incident happened in front of eye witnesses of Prakashbhai and Prahladbhai. He has submitted that the case would not fall under Exception 4 of Section 300 of IPC ; that the incident has taken place in the open place and the eye-witness has stated that the appellant was in aggression and has given khilasari blow for recovering a meagre amount of Rs.200/-, which shows that rage and conduct of the accused, which is also required to be considered and therefore, he has submitted that the present appeal should be dismissed. 8. We have heard learned advocates appearing for the respective parties at length, perused the impugned judgment of conviction and has scrutinized the oral as well as documentary evidence. 8.1 The deposition of PW 2 at Exh.16-Prakashbhai Patni-the complainant and eye witness. He has reiterated what is stated in the complaint by him. In the cross-examination, he has stated that he was present at the time of the incident, his lorry was there, that it is true that the incident occurred at around seven in the evening and at that time, it was dark and that his brother-deceased was doing labour work. 8.2 The prosecution has also examined other eye witness-Prahladbhai Shankarbhai-PW 12 at Exh.35, who has stated that the deceased Maheshbhai came from work to my lorry and ate banana and thereafter, we both went towards on Chhapi highway and accused Mukeshbhai Shankarbhai Patni met us and was fighting with regard to lending and recovering of Rs.200/- and Mukeshbhai has a sharp-edged weapon Khilasari and he hit Maheshbhai on left side of his chest and ran away. As the said Maheshbhai was bleeding, myself and his brother and other came and took him to hospital at Siddhpur and after primary treatment, took him to Mehsana and he died on the way. As the said Maheshbhai was bleeding, myself and his brother and other came and took him to hospital at Siddhpur and after primary treatment, took him to Mehsana and he died on the way. In his cross-examination, he almost stuck to his version in the chief-examination and also pointed out the fact that the deceased did not have the habit of drinking liquor. Except minor contradictions in the cross-examination, there is nothing major to contradict the say of the prosecution. 8.3 The other eye witnesses examined by the prosecution i.e. Mafabhai Shankarbhai Raval-PW13 at Exh.36, Sawabhai Bhikhabhai Loh-PW14 at Exh.37, Sansungbhai Fatabhai Mahiwal-PW15 at Exh.38 and Chaturbhai Devabhai Maru-PW19 at Exh.49 have been declared hostile. 8.4 The prosecution has also examined panch witnesses i.e. PW-4-Bhavinkumar Kachharabhai Joshi at Exh.23, Virmaji Ghemrji Thakore PW-9 at Exh.31 who were panchas of place of offence, Dilipbhai Babubhai Patni PW-5 at Exh.25 who was the panch of deceased’s clothes, Pravinbhai Punambhai Patni-PW-8 at Exh.30 who was panch of accused’s detention, Natwarbhai Hemabhai Makwana-PW10 at Exh.32, Juthaji Sawji Rajput-PW11 at Exh.34 who were the panchas of muddammal weapon discovery were all declared hostile and therefore they were not cross-examined. 8.5 The prosecution has examined the doctor-PW3 Bipinkumar Karshanbhai Prajapati at Exh.19. He stated that when he was on duty from 8.00 p.m. to 8.00 a.m. in General Hospital, Siddhpur on 31.8.2011, at eight hours in the night, Maheshbhai Punambhai Patni, aged 25, resident of Mahendipura Mahi, Ta.Vadgamvala was brought in 108 ambulance by his brother Prahladbhai Chhapanbhai Patni and on examining him, he stated about the injuries that when he was going at 8.30 hours in the night, at that time, Mukeshbhai Patni met him on the way and he was in drunken condition and started abusing him and on his saying no, the accused hit him with knife. The witness opined that the patient was in conscious condition. He narrated the injury on the body of the injured that 3 cm x 2 0.5 cm injured below nipple on the left side of the chest deep till the lung. He stated that after his primary treatment, he advised the patient to be transferred into Ahmedabad civil hospital and when the patient died on the way, he was again brought back. He stated that after his primary treatment, he advised the patient to be transferred into Ahmedabad civil hospital and when the patient died on the way, he was again brought back. On the post-mortem to be conducted, he opined that the probable cause of death is because of the injury caused with sharp-edged weapon and the heart and lungs were damaged. He also opined that the injury caused to him is sufficient to cause death of a person. The cause of death in the P.M.note is mentioned at column no.23 that “cardio respiratory failure due to receive injury over body due to stab injury.” and the final cause of death will be given after FSL report. 8.6 The prosecution has examined Alpeshbhai Narsinhjbhai Gabani at Exh.55-PW22. He has stated the procedure undertaken by him and how the investigation was carried out. After investigation, the accused was arrested on 1.9.2012 and on taking the statement of the accused, he stated that he had hidden the iron khilasari and as he wanted to show the same, the same was discovered in presence of the panchas. He stated that he recorded the statement of witnesses Mafabhai Shankarbhai Raval, Savabhai Bhikhabhai Loh, Mansugbhai Fatabhai Mahival and Chaturbhai Devabhai Maru. Though there are some different wordings in their statements, in crux, all of them have stated that they were present at the place of incident and they saw that the Mukeshbhai Shankarbhai Patni was demanding money from Maheshbhai Punambhai Patni and they were quarreling and Mukeshbhai was using filthy language and therefore on Maheshbhai Patni objecting to the same, Mukeshbhai was provoked and he hit Maheshbhai Patni with iron khilasari which was in his hand and he ran away. The defence could not bring any material in the cross-examination contradicting the said chief examination. 9. Though given opportunity, the defence has not examined any witnesses. 10. Before considering the facts and evidence, it is necessary to reproduce Section 300 of the IPC which reads as under : “300. The defence could not bring any material in the cross-examination contradicting the said chief examination. 9. Though given opportunity, the defence has not examined any witnesses. 10. Before considering the facts and evidence, it is necessary to reproduce Section 300 of the IPC which reads as under : “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. Illustrations 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 provisos:— (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. (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. Illustrations 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. 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.” 11. On minute perusal of the oral and documentary evidence on record, though there are minor discrepancies like the medical officer stated that the deceased was referred to the Ahmedabad civil hospital and the complainant and other eye witness have stated that he was referred to Mehsana hospital; further the weapon used is stated as khilasari by the complainant whereas the deceased has stated that he was hit by knife by the appellant and that the complainant has stated that the deceased was taken to hospital in jeep whereas the medical officer has stated that the deceased was brought in ambulance. However, these discrepancies are not so major to discard the case of the prosecution. However, these discrepancies are not so major to discard the case of the prosecution. From the deposition of the doctor and the medical evidence, it is clear that the deceased was hit by a sharp-edged weapon and there was a single blow and the blow was sufficient to cause death of the deceased. Further, though the other eye witnesses Mafabhai, Savabhai, Mansungbhai, Chaturbhai have turned hostile during the trial, the investigating officer has stated in his deposition about the statements which are recorded by him during investigation, and all of them have stated that the deceased met the accused while he was going home and they had a heated argument and the accused had hit the deceased with a weapon. The defence could not bring anything contrary in the cross-examination of the said officer and there is no reason to disbelieve the deposition of the investigating officer. Thus, it is clear that the deceased was hit by the accused-appellant with a sharp-edged weapon, due to which the deceased died. 12. As regards the premeditation on the part of the appellant-accused for killing the deceased, there is nothing coming even remotely to suggest that there was previous animosity between the deceased and the appellant-accused and that there was planning or premeditation done by the appellant-accused to plot for killing the deceased. From the evidence put forward by the prosecution, it is clear that the deceased was going towards the home and the appellant-accused met him, he was drunk as per the medical evidence, demanded Rs.200/- from the deceased which he lended to him before, and on the deceased denying to give him at the moment, the accused-appellant started using abusive language and the accused-appellant hit the deceased with a sharp-edged weapon (khilasari) which he was carrying with him, as he was a labourer. This fact clubbed with the fact that there was no previous animosity coming on the record and there was no premeditation for the said act, it cannot be said as murder under the definition of Section 300 of IPC . However, it will fall under the exception no.4 of explanation to the said section, i.e. culpable homicide not amounting to murder. As per explanation to exception 4 to Section 300 of the IPC , it is immaterial in such cases which party offers provocation or commits first assault. However, it will fall under the exception no.4 of explanation to the said section, i.e. culpable homicide not amounting to murder. As per explanation to exception 4 to Section 300 of the IPC , it is immaterial in such cases which party offers provocation or commits first assault. It cannot be said that it was premeditated crime and the appellant has intention or motive to kill the deceased. Apart from this aspect, it is coming from the medical evidence that there was only one injury on the chest, might be deep wound, but in our opinion, it can be said that the said act is committed without premeditation in a sudden fight in the heat of a moment upon a sudden quarrel and the accused has not acted in a cruel or unusual manner and thus, it cannot be said that the present appellant has taken undue advantage and the possibility of offence being committed by the appellant-accused without premeditation in a sudden heat of the moment cannot be ruled out. 13. In the case of Mariappan Vs. State Rep. by Inspector of Police , reported in AIR 2024 SC 253 , it is held by the Hon’ble Supreme Court in paragraph 10 as under: “10. It would also be apt here to refer to the judgment(sic) of Surinder Kumar v. Union Territory, Chandigarh MANU/SC/0589/1989 : (1989) 2 SCC 217 , wherein this Court had laid down the grounds to invoke Exception 4 to Section 300 Indian Penal Code: 7. 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 no 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. 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.” 14. It is also fruitful to refer judgment of Hon’ble Apex Court in the case of Balu Sudam Khalde Versus State of Maharashtra reported in 2023 (13) SCC 365 , wherein it is held in paragraphs 57 to 61 as under: “57. Thus, the sine qua non for the application of an Exception to Section 300 always is that it is a case of murder but the accused claims the benefit of the Exception to bring it out of that Section and to make it a case of culpable homicide not amounting to murder. We must, therefore, assume that this would be a case of murder and it is for the accused to show the applicability of the Exception. Exception 4 reads as under:- "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." 58. A perusal of the provision would reveal that four conditions must be satisfied to bring the matter within Exception 4: (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in the heat of passion; and; that (iv) the assailant had not taken any undue advantage or acted in a cruel manner. 59. On a plain reading of Exception 4, it appears that the help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight, (c) without the offenders having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. 60. To bring a case within Exception 4 all the ingredients mentioned in it must be found. 60. We have already noticed the extent of injuries suffered by the deceased, as it appears from the deposition of the PW 7 Dr. Shrikant who carried out the post mortem. Having regard to the nature of the injuries caused by dangerous weapons like sickle and sword which, were applied on the vital part of the body, there is no escape from the conclusion that it is a case of Section 302 of the IPC . 61. It is very difficult for us to accept the submission of the learned counsel appearing for the appellant that the case would fall within the Exception 4 to Section 300 of the IPC and such benefit be extended to the accused. Assuming for the moment that the incident had occurred in the heat of the moment and fight was also sudden, we should not overlook the fact that the appellants herein inflicted as many as nine blows with a dangerous weapon on the deceased who was unarmed and was helpless. For cases to fall within clause (3) of Section 300 of the IPC , it is not necessary that the offender intended to cause death, so long as the death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature. Rajwant Singh v. State of Kerala reported in AIR 1966 SC 1874 is an apt illustration of this point.” 15. In view of the above discussion, we find that the appellant would be entitled to get benefit of exception of Section 300 of IPC and thus conviction under Section 302 of IPC awarded by the learned trial Court is required to be altered. 16. It is brought to our notice that the accused-appellant is behind bars for 10 years 10 months 23 days. 17. In view of above, the following order is passed. 17.1 The present appeal is partly allowed. 17.2 The impugned judgment and order dated 31.10.2012 passed by the Additional District and Sessions Judge, Banaskantha-Palanpur in Sessions Case No.79 of 2011 is hereby modified and the appellant is convicted for the offence punishable under Section 304 (II) of IPC , 1860. 17.3 The appellant-accused has already undergone sentence of 10 years 10 months 23 days, prior to the release on bail by order dated 3.3.2023. 17.3 The appellant-accused has already undergone sentence of 10 years 10 months 23 days, prior to the release on bail by order dated 3.3.2023. We find that the said sentence would serve the ends of justice and therefore the appellant-accused is sentenced to the period already undergone. 17.4 The bail bonds, if any, stands cancelled. 17.5 Record and proceedings be sent back to the concerned trial Court, forthwith.