Point of law : Only one blow given by the appellant on the head of the deceased which appears to have been given with full force. Furthermore, the act was committed without premeditation in a sudden fight in the heat of passion and the accused has not taken any undue advantage of the same and the accused had not acted in a cruel or unusual manner.

JUDGMENT :

A. J. DESAI, J

1. These two appeals have been filed by the convicts, namely, Prabhatbhai Somabhai Nayak and Dineshbhai Udesinh Nayak challenging their conviction recorded vide judgment and order dated 27.03.2015 by the learned 3rd Additional Sessions Judge, Panchmahal, Godhra in Sessions Case No.127 of 2014 by which both the appellants were convicted for the offences punishable under Sections 302 and 114 of the Indian Penal Code, 1860 and they have been sentenced to life imprisonment and a fine of Rs.10,000/- and in default thereof, further one year simple imprisonment has been ordered.

2. The appeals came to be admitted by this Court on 22.2.2016. The Records and Proceedings along with the Paperbook has been called for from the learned Sessions Court which has reached to this Court and placed before us.

3. The case put forward by the prosecution is as under :-

3.1 That on 30.5.2014, one Minaben wife of Vakhatsinh Shanabhai Nayak, resident of village Kharkhadi Mahadev Faliya, Tal. Ghoghamba, Godhra lodged an FIR with Rajgadh Police Station and declared that she resides along with her husband Vakhatsinh, her in-laws at village Kharkhadi. Her father-in-law has two brothers, one is appellant - Prabhatbhai Somabhai Nayak and resides in the house which is adjacent to each other. She further declared that her father-in-law and her uncle-in-law Prabhatbhai Somabhai Nayak are jointly carrying on agricultural work and distribute the sale proceeds received from selling the agriculture produce. Prabhatbhai Nayak has only one daughter, namely, Umedaben and she is residing at another village with her husband. Umedaben has two sons and elder son is Dineshbhai Udaisinh Naik - appellant of Criminal Appeal No.140 of 2016. It is further alleged in the FIR that on 29.5.2014, when she was in the field, which is being cultivated jointly by her father-in-law and her uncle-in-law, some altercation took place between Prabhatbhai Somabhai Nayak and her husband, namely, Vakhatsinh Shanabhai Nayak and started using abusive language and, therefore, when her husband asked Prabhatbhai Nayak not to use filthy language, Dineshbhai Udaisinh Naik came with a wooden log and gave a blow on the head of her husband pursuant to which he fell down. The Sarpanch called 108 Ambulance and immediately, her husband Vakhatsinh was taken to Ghoghamba Government Civil Hospital. Thereafter, he was transferred to Vadodara Civil Hospital where he succumbed to the injuries. With the above allegations, FIR bearing I C.R. No.63 of 2014 came to be filed for the offences punishable under Sections 302, 504 and 114 of the Indian Penal Code.

3.2 Appellants of both the appeals came to be arrested by the Investigation Officer. Upon completion of investigation, on the basis of the material collected against the accused persons, the Investigating Officer found a prima facie case against the accused and charge sheet came to be filed before the Court of learned Judicial Magistrate First Class, Godhra for the alleged offences. Since the offence alleged against the accused persons was triable by the Court of Sessions, the case was committed to the Court of Sessions under Section 209 of the Code of Criminal Procedure, 1973, which came to be registered as Sessions Case No.127 of 2014.

3.3 On committal, the case was transferred and placed for trial before the learned 5th Additional Sessions Judge, Panchmahal @ Godhra who had initially framed charge vide Exh.2 for the alleged offence. The charge was read over and explained to the accused. Plea of each accused came to be recorded vide Exh.3 & 4, wherein the accused pleaded not guilty to the charge and claimed to be tried.

3.4 In order to bring home the charge leveled against the accused, the prosecution has examined as many as 12 testimony witnesses and also produced documentary evidence in the form of Panchnama, P.M. Note, F.S.L. Report and relied upon the contents of the same. After recording the evidence of the prosecution witnesses, the le