1. to 3. xxx xxx xxx.

4. Learned Advocate Mr. P.M. Vyas for the appellant was heard at length. Learned Advocate Mr. Vyas for the appellant fairly submitted that so far as the proved facts of the case are concerned he had nothing to submit but he advanced his argument and focused the attention on the facts and circumstances of the case and the nature the offence proved against the accused-appellant. According to the learned advocate for the appellant, facts and circumstances clearly establish that the appellant could not have been convicted for the offence punishable under Section 302 of the IPC but what is proved against the accused is the offence under Section 304 Part I or II of the Indian Penal Code. In short it was argued that this is not a case of murder but a case of culpable homicide not amounting to murder. Learned Advocate for the appellant draw our attention to Exception 4 of Section 300. It was submitted that the parties are near relatives. There was an earlier incident and there could not have been an intention on the part of the accused No. 1-appellant to cause murder of Maiji. It was urged that the accused appellant is attributed a single blow below right knee of the deceased. It was urged that there was no premeditation on the part of the appellant. It was also urged that it was a sudden quarrel and in heat of passion the incident occurred. It was also submitted that the accused did not act cruelly nor did take the undue advantage of the situation. It was urged that the appellant is undergoing sentence since 1993. It was also urged that the conviction of the appellant under Section 302 is erroneous and is required to be converted into Section 304 Part I or II of the Indian Penal Code. It was further submitted that the appellant accused has already undergone 8 to 9 years imprisonment and this period of undergone imprisonment may be considered sufficient punishment for the act done by the appellant. Therefore it was lastly submitted that the appellant may be ordered to be released and appeal be allowed.

5. On the other hand, learned APP Mr. K.T. Dave has drawn our attention to the evidence of 3 eye witnesses including injured eye witness and the Doctor who performed post-mortem and submitted that the Sessions Judge rightly convicted the appellant for the offence under Section 302 of the IPC and in the facts and circumstances of the case, the Sessions Judge did not fell into error. It was further submitted that the appeal be dismissed.

6. Considering the rival contentions, we have carefully gone through the evidence on record in the shape of oral as well as documentary. We are called upon to decide the nature of offence proved against the appellant. Even if we examine the appeal in this narrow compass, we would be required to appreciate the evidence with reference to the contentions raised on behalf of the appellant. While we consider the evidence of Shantilal Exh. 28, PW 4, complainant and the son of the deceased, the evidence of PW 5, Exh. 30 Champaben daughter-in-law of the deceased and the evidence of PW 10, Exh. 46 Rangitbhai, an injured eye witness, it clearly transpires that, it is proved that one incident preceded the present incident which took place at 5 o'clock, in the field of the complainant whereby the deceased demanded the money for the rent of machine utilized by the accused, and appellant No. 1 reacted to this demand with a spade in his hand, menacingly ran after the family of the complainant. The family of the complainant escaped because they retreated from that place and came to their own field where the machine was fixed. Evidence clearly denotes that while Champaben, Rangitbhai and deceased Maiji were returning home at about 6 o'clock from their field, they were accosted by the accused. Complainant Shantilal Exh. 28 has clearly deposed that way to their home passed through the court yard of the house of the accused No. 1. Champaben who accompanied the deceased clearly states that all the six accused with weapons like axe, dharia and sticks were standing near the house of the accused No. 1. This speaks of premeditation. What is proved by the deposition of these three eye witnesses, is, without any further verbal exchanges, the appellant No. 1 inflicted blow below the right knee of the deceased. The necessary reasonable inference could be drawn that all the accused lashed with weapons, were awaiting the arrival of complainant side. These facts which are proved by the evidence leaves no manner of doubt that the appellant No. 1 had the necessary intention to be saddled with the charge under Section 302 of the IPC. While we scrutinized the evidence of the three witnesses, it could not be found that the incident which occurred near the house of appellant, can be labeled as a sudden fight or an incident occurred in a heat of passion. It is also clear from the evidence that on earlier incident, family of the complainant was driven out by the accused No. 1 appellant running after them with a spade in hand and immediately thereafter at about 6 o'clock (an hour later) this incident occurred. When we link this previous incident with the latter incident, we find that neither the deceased nor Champaben nor other two witnesses Shantilal or Rangitbhai were carrying any weapon. The road to reach their house passed near the house of appellant No. 1 were all the appellants were prepared and waiting for the deceased with weapons like dharia, sticks and axe. The deceased was given a fatal blow and while Rangit attempted to intervene, he also suffered injury. For the above said reasons we cannot agree with the learned advocate for the appellant that the accused were waiting for the deceased and his family and when they reached near the house of the appellant, the accused party inflicted blows. The net result of the reappreciation of evidence and circumstances of the case bring us to the conclusion that the appellant, the accused party inflicted blows. The net result of the reappreciation of evidence and circumstances of the case bring us to the conclusion that the appellant is not entitled to the benefit of Exception 4 of Section 300 of the IPC so as to convert the nature of offence from "murder" to "culpable homicide not amounting to murder'. This finding is further supported by the medical evidence which categorically discloses that the injury which the deceased received was sufficient in the ordinary course of nature to cause death. Dr. Vijaykumar Pathak, is examined at Exh. 44, in his deposition he clearly states that the injury which deceased had, could be caused by an axe and was sufficient in the ordinary course of nature to cause death. This opinion of an expert could not be assailed in the cross-examination of the defence and, therefore, considering the evidence in totality, it could not be concluded that the appellant had no required intention or that the incident occurred in heat of passion or the same was a sudden fight or that the accused party did not act in cruel manner and did not take undue advantage of the situation.

7. xxx xxx xxx.

(YSL)

Appeal dismissed.