JUDGMENT : Sujit Barman Roy,C. J. 1. This appeal is directed against the judgment and order dated 19.12.1994 passed by the learned Sessions Judge, Sundargarh in S.T. No. 25 of 1994 convicting the Appellant under Sections 302 and 324, Indian Penal Code and sentencing him to imprisonment for life u/s 302, Indian Penal Code and R.I. for a period of six months u/s 324, Indian Penal Code with a direction that the sentences would run concurrently. 2. The prosecution case in brief is that P.W. 12-Jaga Behera on 24.9.1993 at about 5 P.M. came to Rajgangpur Police Station and lodged an oral complaint stating, inter alia, that he was the helper of a truck bearing registration number OSN 344. When he was coming in that truck being driven by the driver-Susil Ekka (since deceased) towards Rajgangpur loaded with Lime Stones, a bus of Orissa State Road Transport Corporation came from Rourkela side towards Sundargarh and as the said bus driver did not give sufficient space for the truck of the informant for proceeding further, there was an altercation between the accused Bhaskar Rana (since acquitted) driver of the bus and P.W. 11-Marianus Kujur, the driver of the truck which was plying along with the truck of the deceased. The passengers of the bus got annoyed. At that point of time accused Bhaskar Rana, the driver of the bus assaulted P.W. 11. Subsequently, Jogendra Patra, another driver of the same bus, assaulted P.W. 11 with a knife causing severe bleeding injury on his forearm. Seeing this, deceased Susil Ekka, who was the driver of another truck plying along with the truck of P.W. 11, came forward and intervened in the matter and attempted to snatch away the knife from the hands of the Appellant. However, the Appellant inflicted penetrating wounds with a knife on the belly and chest of the deceased. Consequently, the deceased fell down on the road having severe bleeding injuries on his person and lost consciousness. Immediately after the incident, the informant with the help of others, shifted the deceased to the hospital. It was further alleged that the condition of the deceased was precarious. Subsequently, the deceased was shifted to Ispat General Hospital, Rourkela. Marianus Kujur (P.W. 11) was taken to Rajgangpur hospital for his treatment. Immediately after the incident, the informant with the help of others, shifted the deceased to the hospital. It was further alleged that the condition of the deceased was precarious. Subsequently, the deceased was shifted to Ispat General Hospital, Rourkela. Marianus Kujur (P.W. 11) was taken to Rajgangpur hospital for his treatment. On the basis of the said oral complaint, which was reduced to writing by the concerned police officer of the police station, a case u/s 307, Indian Penal Code etc. was registered at the said police station against the Appellant and the acquitted accused. A day or two after the incident, the deceased succumbed to his injuries and accordingly, Section 302, Indian Penal Code was added to the charge. On conclusion of usual investigation, police submitted charge-sheet under Sections 302, 324/34, Indian Penal Code against the Appellant and Bhaskar Rana (since acquitted). 3. In due course of time, the case was committed to the Court of Session where upon perusal of the materials on record, the learned Sessions Judge framed charges u/s 302/34, Indian Penal Code and Section 324/34, Indian Penal Code against the accused persons. To the said charges, both of them pleaded not guilty. 4. The defence plea of the Appellant and his co-accused appears to be that the Appellant never inflicted stab injuries on the deceased. However, when the Appellant along with his co-driver Bhaskar Rana were proceeding along the road, at the spot of the incident, a part of the road was under repair and the remaining portion of the road was too narrow to allow two vehicles to pass through that narrow passage simultaneously and in that circumstance, when the bus driver signalled to retreat and make sufficient room for the bus to pass through that narrow part of the road, the truck driver refused to retreat and insisted that the bus should retreat to give passage to the truck. In that process, there was altercation. In that circumstance, accused Bhaskar (driver of the bus) got down from his bus and assaulted the driver of the truck P.W. 11. To rescue P.W. 11 the deceased intervened and there was some scuffle. The Appellant also sustained some minor injuries. However, the Appellant denied that he was responsible for any of the stab wounds inflicted upon the deceased. 5. On behalf of the prosecution, in all, 16 P. Ws. To rescue P.W. 11 the deceased intervened and there was some scuffle. The Appellant also sustained some minor injuries. However, the Appellant denied that he was responsible for any of the stab wounds inflicted upon the deceased. 5. On behalf of the prosecution, in all, 16 P. Ws. were examined out of whom it appears three witnesses, namely, P.W. 11-Marianus Kujur, P.W. 12-Jaga Behera and P.W. 13-Sukra Khakha were said eye-witnesses. On behalf of the accused two D. Ws. namely, D.W. 1-Dr. Dhabaleswar Choudhury and D.W. 2-Jogendra Patra (Appellant) were examined. 6. For the sake of brevity, we do not recast the evidence. The prosecution more or less introduced the same story in the evidence as was disclosed by P.W. 12 in the FIR. On perusal of the entire evidence on record, we find that there are as many as three eye-witnesses. We are unable to discard their testimony. The learned Counsel for the Appellant failed to point out any serious infirmity in the evidence of these three witnesses to discard their testimony. The learned Addl. Govt. Advocate rightly contended that there is no infirmity in the evidence of the eye-witnesses nor was there enmity between the Appellant and these three eye-witnesses and hence, there is absolutely no reason whatsoever to discard the testimony of these three eye-witnesses. 7. We have perused the entire evidence on record. We find that the evidence of the three eye-witnesses inspires confidence. In these circumstances, we are constrained to hold that the Appellant was the author of two stab wounds found on the person of the deceased. But it seems to us that it was not a pre-meditated murder. It took place in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner and therefore, we are of the view that the case of the Appellant is fully covered by Exception 4 to Section 300, Indian Penal Code. It is not in dispute that accidentally the bus and the truck came to the same spot from opposite direction. At the same point of time as half of the road at that spot was under repair, the other half of the road was too narrow for two vehicles to pass together. It is not in dispute that accidentally the bus and the truck came to the same spot from opposite direction. At the same point of time as half of the road at that spot was under repair, the other half of the road was too narrow for two vehicles to pass together. In these circumstances, both the drivers insisting on each other to make room for their respective vehicle to pass and sudden quarrel took place. We do not enter into the controversy as to who was the aggressor because we are of the view that either side could have been the aggressor and on the basis of the evidence on record, it may not be safe for us to come to any conclusion as to which side was the aggressor. However that the murder was committed without pre-meditation, there could not be any doubt. The incident took place in a sudden fight in the heat of passion upon a sudden quarrel. The Appellant did not take any undue advantage nor did he act in a cruel or unusual manner. Even otherwise, the Appellant was also inflicted with some injuries. As the case is fully covered by Exception 4, the conviction of the Appellant u/s 302, Indian Penal Code appears to have been inappropriate. The appropriate Section under which the Appellant could be convicted, according to our view, was Section 304, Part-I, Indian Penal Code. 8. Accordingly we alter the conviction u/s 302, Indian Penal Code to u/s 304, Part-I, Indian Penal Code. The Appellant has already undergone the sentence for about three years. However, he is now on bail. In the circumstances of the case, we are of the view that, six years' R.I. will meet the ends of justice. We sentence the Appellant to undergo rigorous imprisonment for a period of six years, from which the period of imprisonment already undergone by the Appellant should beset off. We maintain the conviction of the Appellant u/s 324, Indian Penal Code, but do not pass any separate sentence for this conviction. 9. The Criminal Appeal is allowed in part. Registry is directed to transmit the lower Court records to the trial Court quickly along with a copy of this judgment which shall take all necessary steps for apprehension of the Appellant to serve the remaining part of the imprisonment. A.S. Naidu, J. 10. I agree. Final Result : Allowed