The central legal point established in the judgment is the application of exception No. 4 to Section 300 of the Indian Penal Code, which considers the sudden and unpremeditated nature of the act in determining the offence.

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.

2.5 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. As against this, learned